
    In the Matter of the Examination in Proceedings Supplementary to Execution of Isaac Sickle, Judgment-debtor, on the Application of T. Russell Dawson, Judgment-creditor.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 24, 1889.)
    
    1. Supplementary proceedings—Creditor does not "waive his right TO, BY BRINGING ACTION TO INVALIDATE THE ASSIGNMENT.
    A judgment creditor, by bringing an action to invalidate an assignment, does not thereby waive his right to an examination of the debtor, or of a third party, in proceedings supplementary to execution.
    
      2. Same—Assignee can be compelled by sübpcena to produce books AND MAKE DISCOVERY—CODE OlV. PRO., § 2444.
    An assignee, under a general assignment, can be compelled by subpoena, in a proceeding supplementary to execution, to produce the books and papers of the estate and make discovery.
    3. Same—Order in cannot be assailed on appeal from order punishing WITNESS FOR CONTEMPT.
    An order for the examination of a party in supplementary proceedings cannot be assailed on an appeal from an order punishing a witness for contempt in refusing to obey the order. Daniels, J.
    4. Same—Objection to can only be raised on motion to dismiss.
    The objection that the judgment-creditor had waived his right to an examination in supplementary proceedings by commencing proceedings to set aside the assignment can only be raised by the debtor on a motion to dismiss the proceeding. Van Brunt, P. J.
    Appeal by Herman Cantor, a witness in supplementary proceedings, from a special term order, adjudging him guilty of contempt in refusing to answer certain questions.
    
      Blumenstiel & Hirsch, for app’lt; Charles E. Hughes, for judgment-creditor, resp’t.
   Bartlett, J.

The" respondent, T. Russell Dawson, recovered a judgment against Isaac Sickle, and upon the return of the execution unsatisfied,. obtained the usual order for the examination of the judgment-debtor concerning his property. In these proceedings supplementary to execution he caused a subpoena to be served upon Herman Cantor, the appellant, to appear and testify therein, and to produce certain books in the custody of the witness as assignee of the judgment-debtor.

Mr. Sickle was first examined, and testified that he made an assignment for the benefit of his creditors on November 16, 1887. Mr. Cantor was then sworn as a witness, and stated that he was the assignee of Mr. Sickle, and had taken possession of the books in his store, all of which he produced at the hearing. One of,these he identified as Mr. Sickle’s check-book. He also stated that he had a number of checks in his possession that' had been drawn by Mr. Sickle prior to the assignment. At the instance of counsel for the judgment debtor, how'ever, the witness declined to answer the question whether any of these checks were drawn in November, 1887, or how many were drawn within two months of the assignment, or how many were drawn within two weeks thereof to the order of Mr. Sickle or the order of any of his sons, or of any person identified with him in business, or to bearer. The witness also declined to turn to the check-book and checks that he had produced, and give the dates and amounts thereof; or to state whether there was any entry on the stub of the checkbook of a check drawn by Mr. Sickle in November, 1887, to his own order, or cash, or to the order of one of his sons, for $800, or $850, or $950. The objections to these questions, or rather the reasons which the witness gave for declining to answer them, under the advice of the counsel for the judgment debtor, were subsequently discussed before Mr. Justice Lawrence, who directed that the witness should answer them all. Thereupon the questions were again put to Mr. Cantor, and he again declined to answer. For this refusal he has been adjudged guilty of contempt, by the order from which the present appeal is taken.

In the brief for the appellant, it is stated that Mr. Dawson; the judgment creditor, after instituting the present supplementary proceedings, commenced a creditors’ action to set aside the general assignment made by Mr. Sickle to Mr. Cantor. I do not find anything in the appeal papers to show that such a suit has been instituted, but inasmuch as the case appears to have been disposed of below upon the assumption that such was the fact, the existence of such an action may as well be assumed for the purposes of this appeal.

The appellant insists that by electing to bring an action to invalidate the assignment, the judgment creditor has waived his remedy in the present proceeding, so far as he seeks to obtain the information indicated by the questions put to the witness; and, furthermore, that an assignee under a general assignment, cannot be compelled, by mere subpoena, to produce the books and papers of the estate, and make discovery.

In considering these points, which are the only objections upon which the appellant relies, it is important to keep in mind the precise position which the appellant really occupies in the supplementary proceedings. He is in no sense a party to such proceedings. The parties are Dawson, the judgment creditor, and Sickle, the judgment debtor. Cantor is not made a party by the fact that heretofore Sickle has made an assignment to him. If that transaction had any effect to make him a party to the supplementary proceedings, he would be a party thereto just as much whether any subpoena had been served upon him to appear and testify as a witness or not. He comes into these supplementary proceedings as a witness, and in no other capacity; his attendance being enforced under the authority of section 2444 of the Code of Civil Procedure, which provides that in proceedings supplementary to execution, either party may be examined as a witness in his .own behalf, “andmay produce and examine other witnesses as upon the trial of an action.” This provision gives a judgment creditor prosecuting supplementary proceedings, just the same rights in respect to enforcing the attendance, and conducting the examination of witnesses in his behalf, as a plaintiff would have in the trial of a suit at law, including the right to compel the production of books and papers by subpoena duces tecum. In the Matter of the Assignment of Holbrook, 99 N. Y., 539, it was not decided that judgment creditors are prohibited from examining an assignee of the judgment debtor; but merely that proceedings for the examination of witnesses under the general assignment act, are warranted only when taken in aid of an assignment, and not in hostility thereto.

This is because all proceedings taken under the general assignment act necessarily assume the validity and bona fides of the assignment; and hence it was held that a creditor, who desired to attack the-instrument, could not do so in the course of a proceeding conducted under and pursuant to that statute, but must resort to other remedies.

Nor has the case of Dick v. Phillips (41 Hun, 603), any application here. That case related not to an examination in supplementary proceedings, nor to the examination of a witness upon the trial of an action, but to the examination of a party before trial, and the court held that under the present Code of Civil Procedure, a party could not be compelled to produce books and papers for the inspection of his adversary before trial, except in the mode prescribed in the article relating to discovery. Sections 803 to 809. But as has already been shown, the fact that Mr. Cantor is a party to the judgment creditor’s action does not make him a party to these supplementary proceedings; and, therefore, there is no force in the argument that he can only be compelled to produce his books and papers herein by a proceeding founded upon petition.

The case of Schloss v. Wallach (16 Abb. N. C., 319 n; 102 N. Y., 683), is an authority against the appellant’s position and directly in point. There it was originally, held, at chambers, that supplementary proceedings were a substitute for the old creditor’s bill, and that where the creditor has resorted to the latter he could not endeavor to obtain evidence to support his bill in supplementary proceedings founded upon the same 'judgment.

This decision was reversed- by the general term without any opinion, and the case was subsequently taken to the court of appeals where the appeal was dismissed. The counsel for the appellant concedes that the effect of these decisions is, that a judgment creditor may take any number of remedies against his debtor, and that by so doing he makes no election, but they are all concurrent remedies.” This propositions, however, the appellant contends, does not affect the question whether an assignee can be compelled in supplementary proceedings to testify from books and papers; but that question is disposed of by what has already been said in respect to the character in which the appellant comes into the present proceeding. He is here as a mere witness and not in any sense as a party, and unless he be regarded as a party, his counsel’s contention on this part of the case must fail.

I find nothing in this proceeding which is in conflict with the provisions of section 1814 of the Code of Civil Pro. That section provides that an action cannot be maintained to obtain a discovery under oath in aid of the prosecution or defense of another action. But this is not such an action. It is simply a supplementary inquiry conducted for the sole purpose of ascertaining whether the judgment debtor has any property lawfully applicable to the payment of the judgment against him. The witness is properly examined concerning matters pertinent to such inquiry; and the fact that what he says may be useful in another litigation does not deprive the judge of the juristiction to examine him. In such a proceeding the fact that the questions asked of a judgment debtor or of a witness tend to show that the judgment debtor has made a fraudulent assignment is no valid reason why such questions should not be answered. Lathrop v. Clapp, (40 N. Y., 328).

The questions asked of the appellant, in this proceeding, were proper. It was his duty to answer them, and his refusal to do so was a contempt, for which he has been none too severely punished.

The order appealed from should be affirmed, with costs and disbursements.

Daniels, J.

I concur in the opinion of Justice Bartlett, for the reasons he has given, and for that mentioned by the presiding justice, and for the further reason that as long as the first order remains unappealed from and unreversed it cannot be assailed by this appeal from the order directing the punishment of the witness. By that order the witness was directed to answer, and he could not, after that, decline to do so, as long as that remained in force.

Van Brunt, Ch. J.

I concur. The witness could not raise the objection that the judgment creditor had commenced proceedings to set aside the assignment. If that fact was a bar to this proceeding, the judgment debtor could only avail himself of it by a proper motion to dismiss the proceeding. Witnesses are not accorded the privilege of putting in answers for defendants.  