In re the Examination of Stoddard

Smith, P. J.: In an action brought by Jonathan M. Coolidge against Seneca B. Stoddard the plaintiff made a motion for a bill of particulars. This motion was denied, but upon appeal the ,order denying the motion was reversed, with ten dollars costs and disbursements of the' appeal. (Coolidge v. Stoddard, 120 App. Div. 641.) The costs were duly taxed at thirty-five dollars and nine cents. Thereafter an execution against the personal property of said Stoddard was issued and returned wholly unsatisfied. Upon the return of this execution an order was procured from the county judge of Warren county to examine the said Stoddard in supplementary proceedings. The motion to vacate-this order raises the first question that is here for discussion. While there are numerous grounds mentioned for .vacating said order, the ground mainly relied upon is that the county judge had [761] no jurisdiction to grant the same upon the return unsatisfied of an execution against personal property issued under section 779 of the Code of Civil Procedure. The authority for the institution of this special proceeding is found in section 2432 of the Code of Civil Procedure. That section provides for the examination of a judgment debtor. In 1896 there was added to the section the following provision: “ The party to whom costs are awarded in a special proceeding shall be entitled to the same remedies under this title, under the same circumstances, as near as may be, as a judgment creditor. And for the purposes of this title, the party to whom such costs are awarded shall be deemed a judgment creditor, and the party against whom they are awarded shall be deemed a judgment debtor.” The conclusion of a special proceeding is expressed by a- final order and not by a. judgment. It will be noticed that neither in that section of the Code nor elsewhere, up to the time of this amendment, was there any authority for the examination of a debtor other than a judgment debtor, and up to that time it is not contended that there was any authority for the examination of one against whom an execution under section 779 of the Code had been returned unsatisfied. ' This amendment, however, made in 1896, refers simply to an order in special proceedings. It nowhere gives the right to this remedy to a creditor for costs given by an interlocutory order in an action. The necessary and reasonable construction, therefore, of this amendment of section 2432, in connection with the subject-matter of the section amended, would seem to give this remedy to a creditor for costs in a final order in special proceedings. It is-not reasonable to suppose that the Legislature was intending to give this remedy to a creditor for interlocutory costs in a special proceeding where they had none for interlocutory costs in an action. The respondent here seeks to uphold this order under section 2435 of the Code of Civil Procedure. In 1896 that section was amended so as to provide for the granting of the order for examination after the return of an execution against property issued upon a judgment, “ or in case of an order issued in the same manner so far as the provisions of said section can be applied in substance.” It is claimed that this enlarges the rights of the creditor and authorizes [762] the granting of the order upon the return of an execution issued under section 779 of the Code.- It would seem if it were the intent of the amendment, of 1896 to enlarge the cases to which the pro-needing might be made applicable, that the amendment would have been made to section 2432, which assumes to state in what cases the remedy may be applied for. But this amendment to section 2435 was made by chapter 176 of the Laws of 1896, the same chapter by which' section 2432 was amended, and the provision made, applicable to orders 'in special proceedings. This fact would seem to clear away all doubt as to what was intended by the amendment of section 2435, and would seem to make clear that the order referred to in section 2435 was the final order in a special proceeding, to which the remedy was extended by the amendment of section 2432. - There is strong reason for denying this remedy to a creditor whose right is only to issue execution against personal property. A receiver could hardly be appointed if no personal property were found, provided the debtor had real estate. That receiver, as such receiver, certainly could not take real estate upon which the order granting the costs was not a lien. There is no authority anywhere for the appointment of a receiver for personal property only. The reasoning of the cases which deny the right of this remedy upon a judgment for less than twenty-five dollars strongly supports the construction which we have given. (See Mason v. Hackett, 35 Hun, 238.) In the case of Importers & Traders’ National Bank v. Quackenbush (143 N. Y. 567) it is-held that this remedy is not available except after the return of an execution “ effective to exhaust the remedy at law. * * * It is not enough- that forms are observed by the return of an execution which is not effective to reach all of the debtor’s property, and the right does not arise unless at the time of issuing the- execution the creditor had a judgment which was a lien oh the debtor’s real estate and chattels real, so that the execution could reach them as. well as his personal property.” For the reason stated we cannot approve of the decision of the Erie Special Term in Matter of Sirrett (25 Misc. Rep. 89). Upon the return day of the order for an examination the debtor appeared without counsel before the referee. Having answered certain questions he objected to going further without [763] counsel. It appears that the attorney for the creditor insisted upon asking certain questions, however, before the adjournment. These 'were claimed to have been immaterial and only had reference to the fact as to whether he kept certain books; but upon that insistance and upon the compulsion of the referee, Stoddard asked if he might settle the whole matter. He was told that he might settle by payment of the costs and thirty-five dollars costs of the proceedings. This he attempted to do under protest, but the attorney for the creditor refused to accept the money under the protest of the said Stoddard, and the amount of seventy dollars and nine cents was finally paid. This amount included the thirty-five dollars and nine cents, the costs entered in the order, and thirty-five dollars costs of the proceedings. In the motion which has been denied the said Stoddard asked that the said Williams and his client Coolidge be required to repay these moneys, as having been obtained under duress of a void order. These facts appear substantially in the affidavit of Mr. Williams, and also in the report of the referee. At the close of the evidence given appears this statement: “ Mr. Stoddard : ‘ I want to ask if there is* not any legal rights in this proceeding. I want to object or ask a postponement or something/ At this point, after some discussion, the proceedings were discontinued before the referee by judgment-creditor* paying amount of the judgment and costs, amounting to $70.09.” It seems to me clear that this constituted legal duress, however unimportant might be the questions which the creditor’s attorney desired to ask of him. He was seeking an adjournment which was refused to him, unless those questions were allowed to be asked. He then sought to pay under protest, but was not allowed to pay under protest. His only remedy to escape the examination under this void order then was the payment of these moneys. The court should not allow moneys thus secured to be retained by the creditor or his counsel, and they should be directed to repay the same. The order of the county judge should, therefore, be reversed, with ten dollars costs and disbursements, and the motion made should be granted, with ten dollars costs. All concurred, except Kellogg, J., dissenting in opinion. Footnotes [*] Sic.