The order appealed from in this case arises out of a proceeding supplementary to an execution on a judgment in favor of the plaintiffs against Marvin W. Clapp. The execution had been returned unsatisfied, May 10th, 1861. Justice ROSEKRANS made an order requiring the said judgment debtor to appear before a referee, and be examined as to his property. It also authorized the referee to take the evidence of any witness that might be produced before him by the parties. In pursuance of the order the said Marvin W. Clapp appeared before said referee and was examined, and Benjamin Clapp and Theodore W. Clapp were called as witnesses by the plaintiff, and they were sworn and each of them refused to answer many questions which were propounded to them by the plaintiff, that the referee ruled were proper, and directed them to answer. The questions were mainly in regard to property that once belonged to the said Marvin W. Clapp, and was alleged to have been transferred by him to the said Benjamin Clapp and Theodore W. Clapp. They refused to testify in regard to such transfer, or the consideration thereof, or the object or manner of doing it.
Such questions were proper. A full examination should have been submitted to by these two witnesses. They should *Page 338 have explained fully in regard to the transfer, its consideration, the circumstances attending it, and the manner and object of making it. The plaintiffs were entitled to go into such investigation, that the court might be informed whether the debtor had any equitable or legal interest in the property alleged to be transferred; whether there was probable cause to believe he had such interest as to justify the judge in appointing a receiver. Not for the purpose of finally adjudging and determining in whom the title to this property was, and ordering it to be applied on the judgment, but for the purpose of determining whether or not a receiver should be appointed, who would be authorized to bring an action to recover such equitable, or legal interest. The latter part of section 292 clearly indicates that such examination may be had, and section 299 is not inconsistent with such right. This must be treated as if there was no other property, and the appointment of receiver depended upon this alone.
These witnesses did not deny their refusal to answer these questions. They appeared before the judge, on the return of the order to show cause, and attempted to justify such refusal. Therefore no interrogatories were necessary to be filed. (Pitt v. Davidson, 37 N.Y.R., 235.) It is not stated in the order to punish these witnesses that it was adjudged that their misconduct was calculated or actually did defeat, impair, impede or prejudice the rights or remedies of any party to the proceeding.
It is required to be so adjudged by section 20 of the 2 R.S., p. 538. It is not required to be so adjudged if the contempt can be punished under section 302 of the Code. Code, section 275, provides that witnesses may be required to appear and testify, on any proceedings under this chapter, in the same manner as upon the trial of an issue. Code, section 302, provides, if any person, party or witness disobey an order of the judge or referee, duly served, such person, party or witness may be punished by the judge as for contempt.
If the disobedience of a witness, in refusing to answer *Page 339 questions after he is sworn, under the rulings and direction of the referee, without any written order being made or served upon him, comes within the provisions of this section, 302, of the Code, the order of the judge appealed from is right. If not, it is wrong for two reasons:
1st. The judge, as such, has no power to punish for contempt under the Revised Statutes. (2 R.S., 534, §§ 4, 5 and 6.)
2d. The order does not state that the proceedings had been impeded, impaired, prejudiced or defeated by such misconduct. (2 R.S., 538, § 20.)
A person that voluntarily appears and is sworn as a witness, and refuses to answer certain questions when no written order is made or served upon him, although he be directed by the referee to answer, does not disobey any order of the judge or referee that has been duly served upon him, and his misconduct does not come within the provisions of that section of the Code.
It is a jurisdictional question, and when a judge, as such, makes an order he must find his authority apparent in the statute. In this case there were not such papers before the judge as to give him authority to make this order. The only way such misconduct as this can be punished is by an application to the court, at Special Term, under the Revised Statutes. It may, in that way, be punished. (Wicker v. Dresser, 13 Howard, 331;Hilton v. Patterson, 18 Abbott, 245; Kearny's Case, 13 Abbott, 459.) The judge, in this case, had no jurisdiction to make the order appealed from. It should, therefore, be reversed together with the order of the General Term affirming it. No point was made that said order was not appealable to this court.
All the judges, but MURRAY, who was for reversal, and WOODRUFF, who did not vote, being for affirmance.
Order affirmed. *Page 340