Graham v. Colburn

14 How. Pr. 52

• Court: The Superior Court of New York City
• Decided: February 15, 1857
• Status: Published

Opinion

Bosworth, Justice.

The chapter of the Code relating to proceedings supplementary to the execution, does not, in terms, authorize a commission to be issued.

The party, who is the judgment-debtor, is required to appear before the judge making the order, or before a referee appointed by the court or judge. Sections 295 and 296 make it the duty of witnesses, when duly subpoenaed, to appear before such judge or referee. Those two are the only sections which confer authority to compel the attendance of witnesses, or to procure testimony. Section 301 provides for the allowance of witnesses’ fees.

These sections contemplate, and provide for, summary proceedings, to be had in the county in which the judgment-debtor resides, if he be a resident of this state. (§ 292.)

If any witness disobey any order of the judge or referee, duly served, he may be punished by the judge as for a contempt. (§ 302.)

They confer no express authority to issue a commission to examine witnesses residing out of the state.

Instead of conferring it, either expressly or by implication, their general scope and meaning is repugnant to the existence of a legislative intent to grant such authority.

The motion must be denied.