34 Hun, 369. 6 Civ. Pro. 90. 34 Hun, 369. 17 N. Y. State Rep. 879. Supp. 257. 2 N. Y. § 2426. At the time and place specified in the order, or at the time and place to which the hearing is adjourned, the court, or the referee, must hear the allegations and proofs of the parties, and determine the facts. If a referee was not designated in the order to show cause, the court may, in its discretion, appoint a referee when or after the order is returnable. The decision of the court, or the report of the referee, must be in writing, and must be made and filed with all convenient speed. It must contain a statement of the effects, credits, and other property, and of the debts and other engagements, of the corporation, and of all other matters, pertaining to its affairs. § 2427. The court or the referee is entitled to use, upon the hearing, the origiual petition, and the schedules annexed thereto; and the clerk must transmit them accordingly, upon the written order of the judge, or of the referee. In that case, they must be returned with the decision or report. § 2428. Where the hearing is before a referee, a motion for a final order must be made to the court, upon notice to each person who has made himself a party to the proceedings, by filing with the clerk, before the close of the hearing, a notice of his appearance, in person or by attorney, specifying a post-office within the State, where such a notice may be served. The notice may be served as prescribed in this act, for the service of a paper upon an attorney in an action. Where the hearing was before the court, a motion for a final order may be made immediately, or at such a time and upon such a notice, as the court prescribes. § 2429. Upon an application for a final order, if it appears to the court, in a case specified in section two thousand four hundred and nineteen of this act, that the corporation is insolvent, or, in a case specified either in that section, or in section two thousand four hundred and twenty of this act, that, for any reason, a dissolution of the corporation will be beneficial to the interests of the stockholders, and not injurious to the public interests, the court must make a final order, dissolving the corporation, and appointing one or more receivers of its property. Upon the entry of the order, the corporation is dissolved. The court may, in its discretion, appoint a director, trustee, or other officer, or a stockholder of the corporation, a receiver of its property. § 2430. A sale, assignment, mortgage, conveyance, or other transfer, of any property of a corporation, made after the filing of a petition as prescribed in this title, in payment of, or as security for, an existing or prior debt, or for any other consideration; or a judgment thereafter rendered against the corporation by confession, or upon the acceptance of an offer, is absolutely void, as against the receiver appointed in the special proceeding, and as against the creditors of the corporation. · 132 N.Y. 212. § 2431. [Am'd 1884.] This title does not apply to an in- 103 N.Y.302 corporated library society, to a religious corporation, or to a select school or academy incorporated by the regents of the university, or by the legislature, or to a municipal or other political corporation. In the case of corporations affected by the provisions of this title and not having stockholders, it shall be sufficient for the purposes of this title to notify, name and refer to the "members" of such corporations instead of "stockholders" as herein provided. TITLE XII. Proceedings supplementary to an execution against property. ARTICLE 1. Proceedings to compel an examination of the judgment debtor, and of his debtor or bailee. 2. The receiver. ARTICLE FIRST. PROCEEDINGS TO COMPEL AN EXAMINATION OF THE JUDG- § 2432. The different remedies § 2450. Balance to be paid or de under this title. livered to judgment 2451. Judge ma enjoin trans- 2453. Service of a warrant. 2456. Id.; to judgment debtor, 7 $1168, Con- 64 How. Pr. 378. 36 Hun, 107. 46 Id. 323. 18 Abb. N. C. 461. 51 Hun, 53. $1168, Con- State Rep. 51 N. Y. Super. Ct. Abb. N. § 2432. This title provides for three distinct remedies, as follows: 1. An order made or a warrant issued against a judgment debtor, after the return of an execution. 2. An order made, or a warrant issued against a judg ment debtor, after the issuing and before the return of an execution. 3. An order, made after the issuing, and either before or after the return, of an execution, against a person who has property of the judgment debtor, or is indebted to him. The proceedings under subdivision third of this section, may be pursued, either alone, or simultaneously with the proceedings under subdivision first or subdivision second. § 2433. Each of those remedies is a special proceeding. But an order, made in the course thereof, can be reviewed, only as follows: 1. An order, made by a judge, out of court, may be vacated. or modified by the judge who made it, as if it was made in an action; or it, or the order of the judge vacating or modifying it, may be vacated or modified, upon motion, by the court out of which the execution was issued. 2. Where the execution was issued out of a county court, an appeal from an order, made in the course of the proceedings, may be taken in like manner, as if the order was made in an action brought in the same court, § 2434. [Am'd 1881, 1884.] Either special proceeding may be instituted before a judge of the court out of which, or the county judge, the special county judge, or the special surrogate of the county to which the execution was issued, or where it was issued to the city and county of New York, from a court other than the city court of that city, before a judge of the court of common pleas for that city and county. Where the execution was issued out of a court other than the supreme court, and it is shown by affidavit that each of the judges before whom the special proceeding might be instituted, as prescribed by this section, is absent from the county, or for any reason unable or disqualified to act, the special proceedings may be instituted efore a justice of the supreme court. In that case if he does not reside within the judicial district embracing the county to which the execution was issued, the order made or warrant issued by him must be returnable to a justice of the supreme court residing in that district, or the county judge, or the special county judge, or special surrogate of that or an adjoining county, as directed in the order or warrant. § 2435. At any time within ten years after the return, (J. & S.) 69. wholly or partly unsatisfied, of an execution against property, issued upon a judgment, as prescribed in section two thousand four hundred and fifty-eight of this act, the judgRep. ment creditor, upon proof of the facts, by affidavit, or 19. 848. Y.200. other competent written evidence, is entitled to an order, requiring the judgment debtor to attend and be examined concerning his property, at a time and place specified in the order. § 2436. At any time after the issuing of an execution 38 Hun, 142. against property, as prescribed in section two thousand four hundred and fifty eight of this act, and before the return thereof, the judgment creditor, upon proof, by affidavit, or other competent written evidence, that the judgment debtor has property, which he unjustly refuses to apply towards the satisfaction of the judgment, is entitled to an order, requiring the judgment debtor to attend and be examined concerning his property, at the time and place specified in the order. 59 How. Pr. 452. 26 N. Y. State Rep. § 2437. Upon proof entitling a judgment creditor to an order, under either of the last two sections; and also proof, by affidavit, to the satisfaction of the judge, that there is danger that the judgment debtor will leave the State, or conceal himself, and that there is reason to believe that he Id. 102. has property, which he unjustly refuses to apply to the payment of the judgment; the judge may, instead of making an order, issue a warrant under his hand, reciting the facts, and requiring the sheriff of any county, where the judgment debtor may be found, to arrest him, and bring him before the same judge, or before another judge, if the case is one where the warrant must be returnable to another judge. § 2438. Where the facts specified in the last section, are made to appear, as therein stated, at any time after the making of an order, requiring the judgment debtor to attend and be examined, and before the close of his examination, the judge may issue a warrant, as therein prescribed; and, if necessary, may direct the adjournment, or, if the return day of the order has elapsed, the continuance of the proceedings under the order, until after the return of the warrant, and his decision thereupon. § 2439. A warrant, issued as prescribed in the last two sections, may be vacated or modified, as prescribed in section two thousand four hundred and thirty-three of this act, with respect to an order. § 2440. Where a judgment debtor has been arrested and brought before a judge, by virtue of a warrant, issued as prescribed in this article; and it appears, to the satisfaction of the judge, from his examination, or other proof, that there is danger that he will leave the State, or conceal himself, and that he has property, which he has unjustly refused to apply to the satisfaction of the judgment; the judge may make an order, requiring him to give an undertaking, with one or more sureties, in a sum fixed and within a time specified in the order, to the effect, that he will, from time to time, as the judge directs, attend before 96. the judge, or before a referee, appointed or to be appointed in the proceeding; and that he will not, until discharged from arrest by virtue of the warrant, dispose of any of his property, which is not exempted from seizure by section two thousand four hundred and sixty-three of this act. If he fails to comply with the order, the judge must forthwith, by warrant, commit him to prison, there to remain until the close of the examination, or the giving of the required undertaking; except that the judge may direct the sheriff to produce him, from time to time, as required in the course of the proceedings. § 2441. Upon proof, by affidavit, or other competent written evidence, to the satisfaction of the judge, that an execution against property has been issued, as prescribed in section two thousand four hundred and fifty-eight of this act, and either that it has been returned wholly or partly unsatisfied, or that it has not been returned; and also that any person or corporation has personal property of the judgment debtor, exceeding ten dollars in value, or is indebted to him in a sum exceeding ten dollars; the judgment creditor is entitled to an order, requiring that person or corporation to attend and be examined concerning the debt, or other property, at a time and place specified in the order. The judge may, in his discretion, require notice of the subsequent proceedings to be given to the jndgment debtor, in such a manner as he deems just. But a receiver shall not be appointed without such a notice; except as otherwise prescribed in article second of this title. § 2442. An order, requiring a person to attend and be examined, made pursuant to any provision of this article, must require him so to attend and be examined, either before the judge to whom the order is returnable, or before a referee designated therein. Where the examination is taken before a referee, he must certify, to the judge to whom the order is returnable, all the evidence and the other proceedings taken before him. 2443. At any stage of the proceedings, the judge to whom the order is returnable may, in his discretion, make an order, directing that any other examination, or testimony, be taken by, or that a question arising be referred to, a referee, designated in the order. Where a question is so referred, the referee may be directed to report either the evidence or the facts. 2444. Upon an examination under this article, each answer of a party or witness examined must be under oath. A corporation must attend by, and answer under the oath of, an officer thereof; and the judge may, in his discretion, specify the officer. Either party may be examined as a witness, in his own behalf, and may produce and examine other witnesses, as upon the trial of an action. The judge |