Browning v. Hayes

New York Supreme Court

Browning v. Hayes

48 N.Y. Sup. Ct. 382, 1 N.Y. St. Rep. 502

DecidedJuly 15, 1886

StatusPublished

This text of 48 N.Y. Sup. Ct. 382 (Browning v. Hayes) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Browning v. Hayes, 48 N.Y. Sup. Ct. 382, 1 N.Y. St. Rep. 502 (N.Y. Super. Ct. 1886).

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Opinion

Barnard, B. J. :

The plaintiff obtained a judgment in Kings county in the Supreme Court. A transcript was filed in the county of New Y ork and an execution was issued to the sheriff of that county and returned unsatisfied.

The defendant is a non-resident of the State and has a place of business in the county of New York. An order was made by a judge of the Supreme Court in Kings county, that the defendant appear before a referee in the city of New York. The order does not provide that the subsequent proceedings be had before a justice of the Supreme Court of the First Judicial District. I think the order is irregular in this respect and cannot stand. Section 2434 of the Code of Civil Procedure is not very plain. It can be gathered therefrom, by a very strict reading, that it is only in cases where a Supreme Court justice makes the order in the place of other inferior judges, that a provision must be inserted making the order returnable before a Supreme Court justice or other local magistrate of the judicial district where the order is to be executed. This reading is not the true one. A debtor non-resident cannot be taken out of the county where his place of business is. When, therefore, an order to examine a judgment debtor is made by a justice of the Supreme Court, to examine a debtor in another judicial district, the order must be made returnable before a judge of that district, and the words “ in that case ” in section 2434, do not alone refer to orders made for inferior judges, but are intended to embrace all orders to be made “ before a justice of the Supreme Court.”

By section 2442 the referee must certify the evidence to the judge before whom the order is made returnable. This language would not be proper in the ordinary case of an order made in a county where the debtor resided by an officer therein.

The order should, therefore, be reversed, with costs and disburse[384]*384ments, and tlie motion granted, with costs, all costs to be applied on the judgment.

Dykman and Cullen, JJ., concurred.

Part of order appealed from reversed, with costs and disbursements to be applied on the judgment.

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Barnard, B. J. :

The plaintiff obtained a judgment in Kings county in the Supreme Court. A transcript was filed in the county of New Y ork and an execution was issued to the sheriff of that county and returned unsatisfied.

The defendant is a non-resident of the State and has a place of business in the county of New York. An order was made by a judge of the Supreme Court in Kings county, that the defendant appear before a referee in the city of New York. The order does not provide that the subsequent proceedings be had before a justice of the Supreme Court of the First Judicial District. I think the order is irregular in this respect and cannot stand. Section 2434 of the Code of Civil Procedure is not very plain. It can be gathered therefrom, by a very strict reading, that it is only in cases where a Supreme Court justice makes the order in the place of other inferior judges, that a provision must be inserted making the order returnable before a Supreme Court justice or other local magistrate of the judicial district where the order is to be executed. This reading is not the true one. A debtor non-resident cannot be taken out of the county where his place of business is. When, therefore, an order to examine a judgment debtor is made by a justice of the Supreme Court, to examine a debtor in another judicial district, the order must be made returnable before a judge of that district, and the words “ in that case ” in section 2434, do not alone refer to orders made for inferior judges, but are intended to embrace all orders to be made “ before a justice of the Supreme Court.”

By section 2442 the referee must certify the evidence to the judge before whom the order is made returnable. This language would not be proper in the ordinary case of an order made in a county where the debtor resided by an officer therein.

The order should, therefore, be reversed, with costs and disburse[384]*384ments, and tlie motion granted, with costs, all costs to be applied on the judgment.

Dykman and Cullen, JJ., concurred.

Part of order appealed from reversed, with costs and disbursements to be applied on the judgment.

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Bluebook (online)

48 N.Y. Sup. Ct. 382, 1 N.Y. St. Rep. 502, Counsel Stack Legal Research, https://law.counselstack.com/opinion/browning-v-hayes-nysupct-1886.