Lowther v. Lowther, 100 N.Y.S. 965

100 N.Y.S. 965 | N.Y. App. Div. | 1906

Houghton, J.:

The plaintiff recovered in the Supreme Court a judgment against the defendant for a large sum of money, and upon return of execution unsatisfied instituted before one of the justices of that court, proceedings supplementary to execution. An examination of the judgment debtor had been had, but the proceeding itself had not been concluded, and was still pending before the justice who granted the original order. The judgment creditor desired to examine appellant to whom it is claimed the judgment debtor fraudulently transferred a large amount of property, and to that end his attorneys issued a subpoena in the usual form, subscribed by them, tested in the ñame of the justice before whom the proceeding was pending, and appended thereto the name of the clerk of the court. A motion was made to set aside this subpoena on the ground that it was a nullity because it was not signed by the justice before whom the proceeding was pending, and from the order refusing to set it aside'this appeal is taken.

While in a sense proceedings supplementary to execution are proceedings, in the action'in which the judgment is obtained, because the action is not deemed in law terminated until the judgment is satisfied (Matter of Crane, 81 Hun, 96), still the proceeding is not instituted by or in the court in which the judgment has been obtained, but before a judge of that court or some other judge given by law concurrent jurisdiction therefor. • (Code Civ. Proc. § 2434.)

A subpoena to testify as a witness is a “ process ” within the meaning .of the statute (Yorks v. Peck, 31 Barb. 350), and when it is issued out of a court of record, as upon the trial of an action' authority is given by section 24 of the Code of Civil Procedure to the attorney for the party to issue-it. In an action or proceeding pending in á court of record, unless the law otherwise specifies, an attorney for a party may issue a subpoena without application to a court or judge, by signing it himself and testing it in the name of a judge of the court and of its clerk (People ex rel. Jacobs v. Ball, 37 Hun, 245); and such is the universal practice. Where, however, a judge or an arbitrator, referee or other person, or a board or committee is expressly authorized by law to hear, try or determine a matter in relation to which the attendance of a person as a witness-may be required, it is expressly provided by section 854 of the Code of Civil Procedure that “ a subpoena may be issued by and under the hand of the judge, arbitrator, referee or other person, or the chairman or a majority of the board or committee, requiring the person to attend; and, also, in a proper case, to bring with him a book or a paper.” We think this provision is imperative, and that under such circumstances a subpoena must be issued under the hand of the judge or referee, arbitrator or other person, and that it applies to a subpoena issued in supplementary proceedings. As has been pointed out, such proceedings are not instituted in the court or by the court, but before a judge who is given special authority therefor.

The provision of section 2444 of the Code, that on such proceeding 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,” relates, not to the manner of summoning a witness to appear by subpoena, but to the manner in which the examination - shall be hád after the witness has been properly summoned.

The subpoena should have been signed by the judge before whom the proceeding was pending, no referee having been appointed, as is the practice in the first department, and having been issued without his signature and by the attorney alone, it was a nullity, and the motion to set it aside should have been granted.

Judgment creditors are given the right by law to examine witnesses on proceedings supplementary to execution instituted against their judgment debtors; and it has long been the rule on such examinations “ that the fullest scope was intended to be given to ferret out fraudulent transfers of property.” (Lathrop v. Clapp, 40 N. Y. 328, 331.) The Legislature might well have given authority to.the attorney for the judgment creditor to issue subpoenas without application to the judge who granted the order for the examination. It has not done so, however, but, on the contrary, lias provided that such subpoena shall be' issued' by thé judge or referee before whom the proceeding is pending.

The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion to set aside the subpoena granted, with ten dollars'costs.

O’Brien, P. J., Ingraham, Clarke and Scott, JJ., concurred,

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.