Cowen v. William Bernard, Inc. — 80 Misc. 394

Majority

p. 394

Matter of Supplementary Proceedings: Bernard Cowen, Respondent, v. William Bernard, Inc., Appellant.

(Supreme Court, Appellate Term, First Department,

April, 1913.)

Headnote

Supplementary proceedings — discontinuance of — examination of judgment debtor — testimony of witness subsequently taken must be ' filed'.-

Until discontinued by an order, proceedings supplementary to an. .-execution are still pending.

■ Where, after the examination of a-judgment debtor in proceedings supplementary to an .execution, the judgment creditor fails to adjourn the proceeding, the testimony of a Witness subsequently taken and sworn to therein must be filed, and an order denying the judgment debtor’s motion to compel such filing will be reversed. " "

. This is an appeal from an order' of the City Court of the city of New York denying a' motion made by the appellant, a judgment debtor, to compel the judgment creditor to file the deposition of a witness in supplementary proceedings.

p. 395

Robert L. Turk, for appellant.

Joseph N. Folwell, for respondent.

The judgment creditor instituted these proceedings and examined the debtor on February 29, 1912, and failed to adjourn the proceeding to a later date for examination of witnesses. Subsequently the judgment creditor served a subpoena duces tecum, upon one Sophie Bernard to appear for examination as a witness in this proceeding. She appeared and was examined at the office of the judgment creditor. Her examination was written out, entitled in this proceeding and sworn to by her before one of the justices of the City Court.

It is claimed by the respondent that the deposition of Sophie Bernard was taken after the proceeding had lapsed and that the subpoena pursuant to which she appeared for examination was without authority in law and, therefore, the testimony so taken is no part of the papers in this proceeding and he cannot be compelled to file it. It is true that a subpoena for the examination of a witness in supplementary proceedings must issue under the hand of a judge or referee before whom the proceeding is pending and as this' proceeding had not been properly adjourned to a later date it was not pending before any judge, until reinstated upon notice to the debtor, and the subpoena was, therefore, issued without authority and could have been vacated and the examination stayed. Matter of Wilson v. Bracken, 150 App. Div. 577 . However, the proceeding had never been formally discontinued by order and until so discontinued was still pending. Matter of Schwarmecke v. Glenny, 54 Misc. Rep. 36 ; Rothschild v. Gould, 84 App. Div. 196 . The witness obeyed the subpoena and testified in the proceeding, and the debtor made no ob

p. 396

jection. It is difficult to see how the creditor who caused the proceeding to be reopened, the testimony to be taken and sworn to before a justice of the, court under the title of the proceeding, can raise the objection that his acts were irregular and wrongful and hence the examination is not to be regarded as a part of the testimony and should not be filed. .

The order appealed from is reversed with ten dollars costs and disbursements and the motion requiring the judgment creditor to file the examination of Sophie Bernard taken March 5, 1912, is granted with ten dollars costs.

Guy and Gerard, JJ., concur.

Order reversed.

Cases cited

Schwarmecke v. Glenny 54 Misc. Rep. 36 N.Y. Sup. Ct. 1907-03-28 p. 395