Opinion
November 15, 1911.
Arthur S. Hogue, for the appellants
John E. Judge, for the respondent.
Plaintiff filed a transcript of a judgment rendered in her favor in a Justice's Court against the defendants in the clerk's office of Clinton county, and issued an execution thereon which was returned by the sheriff wholly unsatisfied. Thereupon an order in supplementary proceedings was granted by the county judge of that county requiring the defendants to appear before a referee for examination. The defendant John appeared and was examined but the defendant Mary did not appear because of alleged illness. At the conclusion of his examination John executed an assignment of claims to grow due from boarders and the proceeding was adjourned. On the day of the adjournment he and the defendant Mary both failed to appear and upon an order to show cause why the defendants should not be punished for contempt they were found guilty of contempt of court and fined, and directed to appear before the referee for further examination.
The order adjudging the defendants guilty of contempt in disobeying the direction of the referee to appear on the adjourned day stated that such disobedience was willful but did not state that it was found that their conduct defeated, impaired, impeded or prejudiced the rights of the plaintiff.
Orders in supplementary proceedings are judges' orders and not court orders (Code Civ. Proc. § 2434) and are proceedings of a civil character (Id. § 2433). Failure to originally appear for examination in pursuance of an order in supplementary proceedings, or upon an adjourned day, is a civil contempt and not a criminal one, and it is necessary that the order adjudging such contempt should recite that the court has found that the conduct of the party has been such as to defeat, impair, impede or prejudice the right or remedy of the other party to the proceeding. (Judiciary Law [Consol. Laws, chap. 30; Laws of 1909, chap. 35], § 753; Matter of Ryan, 73 App. Div. 137; Dailey v. Fenton, 47 id. 418; Sherwin v. People, 100 N.Y. 351.) The order appealed from was fatally defective in this respect and must be reversed because of the failure to recite such finding.
It does not appear that the defendant John was not fully examined at his first appearance before the referee and no reason is shown why an adjournment should have been taken. He lived a long distance from the office of the referee where he was required to appear, and the loss of time and expense of traveling were considerable. While a judgment creditor has the right to fully examine his judgment debtor and ascertain all that he can with respect to his property or lack of it, the practice is altogether too common of adjourning the proceeding from time to time and prolonging the examination merely for the purpose of annoying the judgment debtor. While the attention of the learned county judge was not called to the adjournment taken in the present case, this court takes this occasion to condemn such practice. Judges granting orders in supplementary proceedings have supervisory power over such examinations had before referees and on application of the judgment debtor can compel their termination within a reasonable time and after a fair examination, and should be alert so to do.
There is no merit in the other points urged by the appellants. The judgment in the Justice's Court cannot be attacked in this proceeding. ( O'Neil v. Martin, 1 E.D. Smith, 404; Saunders v. Hall, 2 Abb. Pr. 418; Courtois v. Harrison, 1 Hilt. 109; Brown v. Nichols, 42 N.Y. 26.)
The return of the execution by the sheriff was not procured by the collusion of the plaintiff or her attorney and was, therefore, legal. ( Forbes v. Waller, 25 N.Y. 430; High Rock Knitting Co. v. Bronner, 18 Misc. Rep. 631.)
The order must be reversed, with ten dollars costs and disbursements.
All concurred.
Order reversed, with ten dollars costs and disbursements.