2433. Nature of the remedies. Review of orders. -Each of those remedies is a special proceeding. But an order, made in the course thereof, can be reviewed only as follows:

1. An order, made by a judge, out of court, may be vacated or modified by the judge who made it, as if it was made in an action; or it, or the order of the judge vacating or modifying it, may be vacated or modified, upon motion, by the court out of which the execution was issued.

2. Where the execution was issued out of a county court, an appeal from an order, made in the course of the proceedings, may be taken in like manner, as if the order was made in an action brought in the same court.

New. Griffin v. Dominguez, 2 Duer, 656; Miller r. Rossman, 15 How, Pr. 10; Dresser v. Van Pelt, id. 19; Bank of Gennesee v. Spencer, id. 412; Billing r. Vandenburgh, 17 id. 80; Seely r. Black, 35 id. 369; Driggs e. Williams, 15 Abb. Pr. 477; Holstein v. Rice, Id. 307; West Side Bank e. Pugsley, 47 N. Y. 368; Ward r. Roy, 69 id. 96; Amore . La Mothe, 5 Abb. N. C. 146; Carter v. Clark, 7 Rob. 43; Orr's Case, 2 Abb. 458; Davis r. Turner, 4 How. 190; Myers' Case, 2 Abb. 476; Crounse. Whipple, 34 How. 333; Bank of Gennesee . Spenser, 15 id. 14; O'Neil v. Martin, 1 E. D. Smith, 404; Hulsaver v. Wiles, 11 How. 446.

2434. What judge may entertain the proceedings. Either special proceeding may be instituted before a judge of the court, out of which, or the county judge or the special county judge of the county to which the execution was issued; or, where it was issued to the city and county of New-York, from a court other than the marine court of that city, before a judge of the court of common pleas for that city and county. Where the execution was issued out of a court other than the supreme court, and it is shown, by affidavit, that each of the judges, before whom the special proceeding might be instituted, as prescribed in this section, is absent from the county, or, for any reason, unable or disqualified to act; the special proceeding may be instituted before a justice of the supreme court. In that case, if he does not reside within the judicial district, embracing the county to which the execution was issued, the order made or warrant issued by him must be returnable to a justice of the supreme court, residing in that district, or the county judge, or the special county judge of that or an adjoining county, as directed in the order or warrant.

Code of Proc., 292, amended. Bingham v. Disbrow, 14 Abb. 231; s.

c., 37 Barb. 34, reversed on other grounds; Terry v. Hultz, 8 Abb. N. S. 109: s. c., 39 How. 169: People ex rel. v. Oliver, 66 Barb. 570; Hulsaver v. Wiles, 11 How. 446; Wilson r. Andrews, 9 id. 39; Miller v. Rossman, 15 id. 10: Billing v. Vandenburgh, 17 id. 80; Dresser v. Van Pelt, 15 id. 19; 8. c.. 6 Duer, 687; Miller v. Adams, 52 N. Y. 409; People ex rel. Dutcher, 3 Abb. N. S. 151; Allen v. Starring, 26 How. 57; Holbrook v. Orgler, 49 id. 289.

§ 2435. Order to examine judgment debtor after return of execution. At any time within ten years after the return, wholly or partly unsatisfied, of an execution against property, issued upon a judgment, as prescribed in section 2458 of this act, the judgment creditor, upon proof of the facts, by affidavit, or other competent written evidence, is entitled to an order, requiring the judgment debtor to attend and be examined concerning his property, at a time and place specified in the order.

Code of Proc., 292. Storrs v. Kelsey, 2 Palge, 418; Tyler v. Whitney, 12 Abb. 465; 33 Barb. 327; Livingstone. Cleveland, 5 How. 396; Engle r. Bonneau, 2 Sandf, 679; Cavanaur. McAndrew, 20 Hun, 46; Collier e. De Revere, 7 id. 61; Orr's Case, 2 Abb. 457; Ross v. Clussman, 3 Sandf. 676; Krill v. Cornmeyer, 56 How. 276; Frederick v. Decker, 18 id. 96; Scott v. Durfee, 39 Barb. 390, note: Walker e. Donovan, 6 Daly, 552; Amore . La Mothe, 5 Abb. N. C. 146; Pardee v. Tilton, 20 Hun, 76; 58 How. 476; Griffin v. Dominguez, 2 Duer, 656; Thompson v. Sargeant, 15 Abb. 452; Lederer v. Erenfeld, 4 How. 403; Johnson e. Tuttle, 17 Abb. Pr.315; People ex rel. Oliver, 66 Barb, 570; Anonymous, 32 id. 201: Butts v. Dickinson, 20 How. 230; 12 Abb. 60; Sluyter. Smith, Super. Ct., Feb. 1868; Blydenburgh e. Cotheal, 5 How. 200; Sperling v. Levy, 10 Abb. 426; Tyler r. Whitney, 12 id. 465; 33 Barb. 327; Forbes v. Waller, 25 N. Y.430; Farquaharson v. Kimball, 9 Abb. 385, (n); 18 How. 33: Sackett v. Newton, 10 How. 560; Carter v. Clarke, 7 Rob. 490; De Comeau v. People, id. 498; Lindsay r. Sherman, 5 How. 308; Hawes r. Barr, 7 Rob. 452; Hoff r. Kohlin, 1 C. R. N. S. 232; Kennedy . Ward, 10 Abb. 62; Kennedy v. Thorp, 3 Abb. N. S.; Reynolds v. McElhone, 20 How. 454; Bingham r. Disbrow, 14 Abb. 251; 37 Barb. 24; 5 Trans. App. 198; Whitlock's Case, 1 Abb. 320; Schanck v. Conover, 56 How. 437; Day v. Brosnan, 6 Abb. N.C. 312; Arctic F. Ins. Co. v. Hicks, 7 Abb.204; Hulsaver v. Wiles, 11 How. 446; Kelty r. Yerby, 31 id. 95; Shults v. Andrews, 54 id. 376; Dresser v. Van Pelt, 15. 19; Bank of Savings v. Hope, 8 Week. Dig. 452; First Nat. Bank v. Deering, 81d. 261; Grocers' Bank v. Bayard, 10 id. 124: Irwin . Chambers, 40 N. Y. 432: Gaylord v. Jones, 7 Hun, 480; Brockway v. Brien, 37 How. 270; Belknap e. Hasbrouck, 13 Abb. 418; Sale v. Lawson, 4 Sandf. 715; Courtois v. Harrison, 1 Hilt. 109; Union B'k of Troy v. Sergeant, 53 Barb. 422; World Co. r. Brooks, 7 Abb. N. S. 712; Driggs r. Williams, 15 Abb. 477; Smith v. Paul, 20 How. 97; Lindsay . Sherman, 5 id. 608: Arnoux v. Homans, 32 1d. 382; Wolf v. Jacobs, 36 N. Y. Super. Ct. 408; see Owen v. Dupignac, 9 Abb. Pr. 180.

2436. Id.; before return of execution. At any time after the issuing of an execution against property, as prescribed in section 2458 of this act, and before the return thereof, the judgment creditor, upon proof, by affidavit, or other competent written evidence, that the judgment debtor has property, which he unjustly refuses to apply towards the satisfaction of the judgment,

is entitled to an order, requiring the judgment debtor to attend and be examined concerning his property, at a time and place specified in the order.

Code of Proc., 292, subd. 2. Sackett v. Newton, 10 How. 568; Owen E. Dupignac, 9 Abb. 180; s. c., 17 How. 512; First Nat. Bank v. Wilson, 5 Week. Dig. 565.

2437. Warrant of arrest instead of order. - Upon proof entitling a judgment creditor to an order, under either of the last two sections; and also proof, by affidavit, to the satisfaction of the judge, that there is danger that the judgment debtor will leave the State, or conceal himself, and that there is reason to believe that he has property, which he unjustly refuses to apply to the payment of the judgment; the judge may, instead of making an order, issue a warrant under his hand, reciting the facts and requiring the sheriff of any county, where the judgment debtor may be found, to arrest him, and bring him before the same judge, or before another judge, if the case is one where the warrant must be returnable to another judge.

Code of Proc., 292, subd. 4, amended. Rohsand v. Waring, 1 Abb. N. C. 311; King . Kirby, 28 Barb. 49; see 1 Barb. Ch. Pr. 649-50; Andrews v. Wilson, 9 How. 39.

§ 2438. Id.; after the order has been made. — Where the facts, specified in the last section, are made to appear, as therein stated, at any time after the making of an order, requiring the judgment debtor to attend and be examined, and before the close of his examination, the judge may issue a warrant, as therein prescribed; and, if necessary, may direct the adjournment, or, if the return day of the order has elapsed, the continuance of the proceedings under the order, until after the return of the warrant, and his decision thereupon.

New.

2439. Warrant; how vacated, etc. A warrant, issued as prescribed in the last two sections, may be vacated or modified, as prescribed in section 2433 of this act, with respect to an order.

New.

S2440. Undertaking may be required, etc. Where a judgment debtor has been arrested and brought before a judge, by virtue of a warrant, issued as prescribed in this article; and it appears to the satisfaction of the

judge, from his examination, or other proof, that there is danger that he will leave the State, or conceal himself, and that he has property, which he has unjustly refused to apply to the satisfaction of the judgment; the judge may make an order, requiring him to give an undertaking, with one or more sureties, in a sum fixed and within a time specified in the order, to the effect, that he will, from time to time, as the judge directs, attend before the judge, or before a referee, appointed or to be appointed in the proceedings; and that he will not, until discharged from arrest by virtue of the warrant, dispose of any of his property, which is not exempted from seizure by section 2463 of this act. If he fails to comply with the order, the judge must forthwith, by warrant, commit him to prison, there to remain until the close of the examination, or the giving of the required undertaking; except that the judge may direct the sheriff to produce him, from time to time, as required in the course of the proceedings.

Code of Proc., part of 292, subd. 4, amended.

2441. Order to examine person having property, etc., of judgment debtor. - Upon proof, by affidavit, or other competent written evidence, to the satisfaction of the judge, that an execution against property has been issued, as prescribed in section 2458 of this act, and either that it has been returned wholly or partly unsatisfied, or that it has not been returned; and also that any person or corporation has personal property of the judgment debtor, exceeding ten dollars in value, or is indebted to him in a sum exceeding ten dollars; the judgment creditor is entitled to an order, requiring that person or corporation to attend and be examined concerning the debt, or other property, at a time and place specified in the order. The judge may, in his discretion, require notice of the subsequent proceedings to be given to the judgment debtor, in such a manner as he deems just. But a receiver shall not be appointed without such a notice, except as otherwise prescribed in article second of this title.

Code of Proc., 294; see 2158, post; and, also, People v. Norton, 4 Sandf. 640; 2469, post; Sherwood v. Buffalo & N. Y. C. R. R. Co., 12 How. Pr. 136; Gibson v. Haggerty, 37 N. Y. 555; Lowber . Mayor, 5 Abb. 261; s. c., id. 248; McBride . Farmers' Branch Bank, 7 id. 347; s. c., 25 Barb. 476; Courtois v. Harrison, 3 Abb.; s. c., 12 How, 359; 1 Hilt. 110; Lathrop v. Clapp, 40 N. Y. 328; s. c., 23 How. 423; Foster v.

Prince, 18 id. 258; s. c.. 8 Abb. 407; Seely v. Garrison, 10 id. 460: Ward r. Beebe, 17 id. 1; s. c., 15 id. 373; Roy v. Baucus, 43 Barb. 310; Hauptman v. Catlin, 1 E. D. Smith, 730; Brett v. Browne, 1 Abb. N. S. 155; Lee t. Heirberger, 1 Code R. 38; Van Wyck v. Bradley, 3 id. 157; Town . Safeguard Ins. Co., 4 Bosw. 683; People v. Hulbert, 5 How. 446; Catlin v. Doughty, 12 id. 459; Corning v. Tooker, 5 id. 19; Woodman e. Goode nough, 18 Abb. 265; Kemp v. Harding, 4 How. 178; Barker v. Johnson. 4 Abb. 435; Holmes v. Jordon, 15 id. 410, note; Parker v. Hunt, id.; Ward v. Beebe, id. 372; Hanson v. Tripler, 3 Sandf. Sup. Ct. 733: People v. Norton, 4 id. 640; Hind v. Canandaigua and Niagara Falls R. R. Co.. 10 How. 487; Lynch . Johnson, 48 N. Y. 27; Smith v. McNamara, 15 Hun, 447; Graves v. Lake, 12 How. 33; Day v. Lee, 52 How. Pr. 25:1 Abb. N. C. 72; Grassmuck v. Richards, 2 id. 359; Sebrauth v. Dry Dock Sav. Bank, 20 Alb. L. J. 197.

§ 2442. Either order may require attendance before a referee. An order, requiring a person to attend and be examined, made pursuant to any provision of this article, must require him so to attend and be exam. ined, either before the judge to whom the order is returnable, or before a referee designated therein. Where the examination is taken before a referee, he must cer tify, to the judge to whom the order is returnable, all the evidence and the other proceedings taken before him.

Code of Proc., 296; Hatch v. Weyburn, 8 How. 163, 313; 11 id. 446; Conway v. Hitchins, 9 Barb. 378; Allen v. Starring, 26 How. 57; Hol lister v. Spafford, 3 Sandf. 742; s. c., 1 Code R. 120; Dickinson e. Van Tine, 1 Sandf. Sup. Ct. 724; Hudson v. Plets, 11 Paige, 10; Kaufman v. Thrasher, 10 Hun, 438; Dorr v. Noxon, 5 How, 29; Corning v. Tooker, id. 16; Redmond v. Goldsmith, 2 Law Bulletin, 19; Sickles v. Hanley, 4 Abb. N. C. 231; Kennedy v. Narcott, 54 How. 87; Lewis r. Penfield, 39 id. 490.

2443. Reference may be ordered at any time.-At any stage of the proceedings, the judge to whom the order is returnable may, in his discretion, make an order, directing that any other examination, or testimony, be taken by, or that a question arising be referred to, a referee, designated in the order. Where a question is so referred, the referee may be directed to report either the evidence or the facts.

Code of Proc., 300. See Dorrv. Noxon, 5 How. 29; and see cases cited under 2442, ante.

2444. Proceedings upon examination; adjourn ment.-Upon an examination under this article, each answer of a party or witness examined must be under oath. A corporation must attend by, and answer under the oath of, an officer thereof; and the judge may, in his discretion, specify the officer. Either party may be examined as a witness, in his own behalf, and may pro