The question presented by this appeal is whether a receiver or sequestrator in a matrimonial action shall have the right to examine persons, who have not been made parties to the proceeding by any order of the court, to ascertain whether they have in their possession property belonging to the husband and for that purpose to require the production of books and papers and the opening of safe deposit boxes. Such a power constitutes, it seems to me, a substantial extension of any which has heretofore been exercised in respect to persons against whom no action or special proceeding has been instituted.
The present case should be distinguished from decisions which have held that a proceeding instituted against third persons to recover property for the benefit of a receiver or sequestrator constitutes a special proceeding in the matrimonial action. (Matthews v. Matthews, 240 N. Y. 28; Geary v. Geary, 272 id. 390; Rosenberg v. Rosenberg, 259 id. 338.) Nor should it be confused with decisions which sustain the right of the receiver to examine persons who in this manner have been made parties to the action, concerning assets of the defendant believed to be in their possession. (Mathushek Piano Mfg. Co. v. Pearce, 79 Hun, 417; Fitzburgh v. Everingham, 6 Paige, 29:)
In the present case no proceeding has been instituted against the appellant who, it is suspected, is in possession of assets of the defendant. He is not a defendant in any action. He is not a respondent in any special proceeding directed against him. Until such a proceeding is initiated by the receiver, the appellant remains, like all others, a stranger to the action, who ought not to be subjected to examinations and whose private affairs should be protected against invasion except upon the clearest statutory authority. Whenever the Legislature has intended to confer such a power it has said so in plain terms. The power is granted by section 919 of the Civil Practice Act when the third party has refused to give a certificate to the sheriff of property of the judgment debtor or the certificate given is believed to be false. The receiver of a corporation, likewise, has such power, though it is carefully restricted, under section 170 of the General Corporation Law. _ In the case *47of the receiver or sequestrator in a matrimonial action, the power has not been granted and ought not to be implied.
The order should be reversed and the motion denied.
Townley, J., concurs.
Order affirmed, with twenty dollars costs and disbursements. The date for the examination to proceed to be fixed in the order. Settle order on notice.