In re De Leon

71 N.Y.S. 380 | N.Y. App. Div. | 1901

O’Brien, J.:

The question presented upon this appeal is whether a third party-ordered to attend an examination under section 2441 of the Code of Civil Procedure, can avoid such examination by submitting an affidavit asserting its ownership of the property which had belonged to the judgment debtor and showing how much property there was and under what circumstances the transfer thereof took place. Cases can be found based on the language of the old Code which sanction such a practice, some of which are referred to in the memorandum of the learned judge at Special Term, but in view of the provisions of the present Code of Civil Procedure, we do not think that the practice can be supported.

The language employed in section 2441 of the Code is that “ the judgment creditor is entitled to an order requiring that person or corporation to attend and be examined concerning the debt or other property.” This language, it will be noticed, is similar to that used in section 2435 of the Code of Civil Procedure, which relates to the order for the examination of the judgment debtor, that the judgment creditor “ is entitled to an order requiring the debtor, under the judgment or order, to attend and be examined concerning his property.” And in section 2444 of the Code it is provided, “ Upon an examination under this article * * *. Either party may be examined as a witness in his own behalf, and may produce and examine other witnesses, as upon the trial of an action.”

Evidently this last section embraces the examination both of the judgment debtor and a third party, because both are “ under this article; ” and thus the distinction which existed by reason of the language employed under the former Code, between the examination of a judgment debtor and a third party, has been eliminated. To emphasize this view, we have in the present Code an entirely new provision in. section 2460, which reads as follows: “ A party or a witness examined in a special proceeding authorized by this article, is not excused from answering a question on the ground * * * that he or another person claims to be entitled as against the judgment creditor, or a receiver appointed or to be appointed in the special proceeding, to hold property derived from or through the judgment debtor.”

The examination, therefore, which is now allowed of a third, party to whom property of the debtor has been transferred is as full and extensive as of the judgment debtor himself, and the right, which' the creditor has to such 'an examination cannot be taken away by the presentation of a statement by the third person as to-his relations concerning the property even though such' statement be sworn to, for the reason that it is not, in our opinion, the equivalent of the- examination allowed by the Code. The right which in express language is given is to examine the third party; and although it was within the power of the court, to prevent such right, of examination being abused, and which power should be exercised,, it was not within its power to take away or to limit that right in the way here sought to be done.

The order appealed from should accordingly be reversed, with ten dollars costs and disbursements, and the order for the examina^tion of the third party should be reinstated.

Van Brunt, P. J., Patterson, Ingraham and Laughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and order for examination reinstated.