In re Backus

Ingraham, J. :

One Henry D. Merchant recovered a judgment in the Supreme Court, Hew York county, against Frances A. Backus, the appellant, upon which execution was issued to the sheriff of Rensselaer county and returned unsatisfied. The defendant resided in Rensselaer county; After the return of this execution unsatisfied, the judgment creditor obtained an order from-the county judge of Rensselaer county which required the judgment debtor to appear before a referee named in the order at his office in the city of Troy, Rensselaer county, to submit to an examination respecting her property. This order was served upon the judgment debtor, who subsequently, with her counsel, appeared before the referee. The judgment creditor then sought to examine the judgment debtor, when she refused to answer questions and refused to obey the directions of the referee, and when the referee insisted upon her answering questions the judgment debtor and her attorney left the office of the referee. The judgment creditor thereupon obtained from a justice of the Supreme Court in the first judicial district an order requiring the judgment debtor'to show cause why she should not be puished for contempt, returnable at a Special Term of the Supreme Court held in the county of Mew York. Upon the return of this order to show cause, the judgment debtor appeared and submitted, as a preliminary objection to the hearing of the motion, that the defendant resides in the county of Rensselaer; that the special proceedings instituted for her examination in supplementary proceedings were instituted before the county judge of Rensselaer county, and any proceedings in reference thereto must hither be taken before the county judge of Rensselaer county or the Supreme ' Court of the third judicial district. The court overruled the objections and punished the judgment debtor for contempt.

Supplementary proceedings are regulated by. the Code of Civil Procedure, and this proceeding was authorized by subdivision 1 of section 2432 of the Code. The execution upon which that-proceeding was founded was issued out of the Siipreme Court to the sheriff of Rensselaer county where the judgment debtor resided, and the proceeding was instituted before the county judge of that county under section 2404 of the Code. By the order of the county judge the judgment debtor was required to attend and be examined before a referee designated in the order as provided for by section 2442 of the Code. The judgment debtor appeared before such referee and was sworn, but refused to answer questions and to -obey the directions of the referee, and was, therefore, guilty of contempt under.section 2457 of the Code, which provides that “a person who refuses * * * to obey * * * án oral direction, given directly to him by a judge or referee in the course of the special proceeding * * * may be punished by the judge or by the court out of which the execution was issued, as for a contempt.” There is no further provision in the article regulating supplementary proceedings as to the method of-enforcing punishment. Section 2266 of the Code provides that “ in a case specified in section 14 of this act, or in any other case where it is specially prescribed by law, that a court of record or a judge thereof or a referee appointed by the court, has power to punish by line and. imprisonment, or either, or generally as a contempt, a neglect or violation of duty or other misconduct ; and a right or remedy of a party to a civil action or special proceeding pending in the court or before the judge or the referee inay be defeated, impaired, impeded or prejudiced thereby, the offenc'e must be punished as prescribed in this title.” Ah application to punish a judgment debtor under section 2457 of the Code is, therefore, regulated by title 3 of chapter 17 of the Code. Section .2268 of the Code provides that a warrant may issue in the first instance, and section 2269 provides that the court or judge may, upon being satisfied by affidavit of the commission of the offense, make an order requiring the accused to show cause before it or him, at a time and place therein specified, why the accused should not be punished for the alleged offense. Section 2273 provides that this order to show cause may be made either before or after final judgment in the action or the final order in the special proceeding; that it is equivalent to a notice of motion, and that the subsequent proceedings thereupon are taken in the action or special proceeding as upon a motion made therein.

This judgment creditor was entitled to an order requiring the judgment debtor to show cause why she should not be punished; which thereupon became, under section 2273 of the Code, an application in that special proceeding pending before the judge who issued the order. Under the provisions of the Code in relation to these supplementary proceedings a proceeding to examine a judgment debtor has tó be instituted in the county in which the judgment debtor resides (See Code Civ. Proc. § 2459), and when that proceeding was there instituted all subsequent applications to enforcé an order in that proceeding must be in that proceeding and must be determined in the county in which it was instituted. As that proceeding is still pending, the judgment debtor can only be punished by an ’application made in that proceeding.

It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion dismissed, with ten dollars costs.

Van Brunt, P. J., and McLaughlin, J., concurred; O’Brien and Laughlin, JJ., dissented.