Wilson v. Bracken

Scott, J. : In this proceeding supplementary to execution the judgment debtor appeals from two orders, each of which denies a motion by him that the - examination of certain witnesses be stayed and the subpoenas issued to compel their attendance vacated-. The proceeding was instituted by an order for the appellant’s examination issued on February 7, 1912. The examination went on from time to time, by virtue of successive adjournments, until February twenty-sixth, when the appellant’s examination was closed, and a motion made to Mr. Justice' Davis, before whom the matter was then pending, for the appointment of a receiver. The justice declined to pass upon the motion until he had had an opportunity to read the testimony, and the matter was adjourned to March first, in Order that the testimony might be written out and signed. On March first the appellant appeared before Mr. Justice Davts and signed and swore to his testimony. Nothing further was done on that date and no formal adjournment of the proceedings made. On March fourth subpoenas were issued to two witnesses requiring them to appear and be examined on March sixth. These subpoenas bear the name of Mr. Justice Hendrick and-seem-to have been issued by his authority. ' On March fifth Mr. Justice Hendrick signed an order or memorandum adjourning the proceedings from March first to March sixth, and on [579] March sixth signed another order or memorandum adjourning the proceedings to March twelfth. On this state of facts the first motion was made to vacate the subpoenas upon the ground that the special proceeding had been terminated on March first. We are of opinion that this motion should have been granted. Proceedings supplementary to execution are proceedings before a judge and not before the court, and while a proceeding commenced before one judge may be continued before another (Code Civ. Proc. §§ 26, 2462), yet it is essential to preserve the .continuity of the proceeding by adjournment from time to time. If this be not done, and the proceedings are allowed to lapse they cannot be revived, at least without notice to the judgment debtor. (Ammidon v. Wolcott, 15 Abb. Pr. 314; Thomas v. Kircher, 15 Abb. Pr. [N. S.] 342.) When Mr. Justice Hendrick issued the subpoenas the proceeding had lapsed and was pending before no judge, and there was consequently no judge competent to issue a subpoena, for such a subpoena must be issued under the hand of the judge or referee before whom the proceeding is pending. (Lowther v. Lowther, 115 App. Div. 307.) It is not necessary to determine whether an order under section 2454 of the Code of Civil Procedure is necessary in order to discontinue a proceeding of this nature. It is sufficient for the purposes of this appeal that the proceeding had clearly lapsed and could be revived only upon • notice to the judgment creditor. Any other rule might work grave injustice. The subpoenas, therefore, were issued without authority and should have been set aside. The appellant’s second motion was based upon a showing that he had settled with the judgment creditor, who had executed a satisfaction of the judgment. The exact facts were, as shown by the affidavit of the judgment creditor, that he had accepted from the debtor a sum in cash, and a number of promissory notes for the amount of the judgment, which notes were payable at monthly intervals. The creditor had executed a satisfaction of the judgment which he had placed in the hands of a third person, to be delivered to the debtor when all of the notes were paid. This of course did not amount to an actual, present satisfaction of the judgment, but there is much ground for the appellant’s contention that the acceptance of the notes operated to suspend the [580] right of the creditor to continue these proceedings for the collection of the judgment. (Martens-Turner Co. v. Mackintosh, 11 App. Div. 419.) It is unnecessary, however, to discuss that question since the subpoenas were irregular and unauthorized for the reasons already stated. It follows that both of the orders appealed from must be reversed, with ten dollars costs and disbursements upon each appeal, and the motion to vacate and set aside the subpoenas granted. Ingraham, P. J., Laughlin, Clarke: and Miller, JJ., concurred. Orders reversed, with ten dollars costs and disbursements, and motions granted.