2 Abb. Pr. 462 | N.Y. Sup. Ct. | 1856
The defendant in this action has been examined, under the provisions of the Code, authorizing proceedings to the execution. The proceedings are a substitute for a creditor’s bill, so well known under our former system in the Court of Chancery.
The obvious meaning of this^ is that the judgment creditor may examine witnesses concerning the property of the judgment debtor, which it is alleged he unjustly refuses to apply towards the satisfaction of the judgment.
H. P. Carr is called by the judgment creditor as a witness, and answers that he is the son of the defendant; that he was once the owner of the furniture of the house where the defendant now lived, and that his father owned it before he did. He is then asked — how was it that you came into possession of the property? This question is objected to, and, as I understand, by counsel acting as counsel of the witness, on the ground that as it appears he claims to own the property, no further inquiry can be made concerning it.
The witness is bound to answer all such questions as may be put concerning the property of the defendant. He is not a party to the proceeding, and is not therefore entitled to have counsel on his examination. He must be regarded as a stranger to these proceedings. (Corning v. Tooker, 5 How. Pr. R., 16). The concluding part of this section seems to me clearly to indicate, that the framers of the Code intended to authorize a most thorough and searching examination. It is, that “ no person shall on examination pursuant to this chapter, be excused from answering any question, on the ground that bis examination will tend to convict him of the commission of a fraud; but his answer shall not be used as evidence against him in any criminal proceedings or prosecution.”
Can it be contended therefore with propriety, that when the legislature had authorized an examination so searching, as to compel a witness to prove a fraud, when his testimony but for the protection of this section might be used as evidence to
I fully concur in the remarks of Mann, Justice, in Le Roy v. Halsey (1 C. R. N. S., 275). That was a case of an examination of the defendants under this section, and I do not see why it is not as applicable to a witness as to the defendant. This section of the Code, in my judgment, places them upon the same footing, so far as the examination is concerned. He says: “ The object of the examination is to ascertain whether the debtor has any property subject to, or exempt from the execution, which ought to be applied to the plaintiff’s claim. The debtor is required to appear and answer “ concerning his property,” that is, the property belonging to him at the time of the examination or bound by the judgment; and every question tending to throw light on that subject is pertinent. It is not sufficient that the defendant answer generally that he has no property, the plaintiff may prosecute his inquiries notwithstanding such an answer. If the defendant is in possession of any property, the plaintiff may ask when, and where, and how he obtained the possession, and on wdiat terms he holds it. If the defendant is not in the possession of any property, he may be asked whether he had any or was interested in any a short time previous to the judgment, and what has become of it, and if he answers that he has sold it absolutely, lie may be asked what were the conditions of the sale, and what has became of the proceeds, so as to ascertain whether any portion of them is yet due to him. But if it appear that he has not in his possession or under his control, any portion of such proceeds, the inquiry respecting such property or proceeds can go no further. There is, in such case,
The witness must answer the question propounded, and all such other questions as fall within the principles of the preceding opinion.