Browning v. Hayes

The plaintiff obtained a judgment in Kings county in the supreme court. A transcript was filed

The defendant is a non-resident of the state, and has a place of business in the county of Hew 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 Hew 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 by 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 disbursements, and the motion granted, with costs, all costs to be applied on the judgment.

Dykman, J., concurs; Cullen, J., not sitting.