14 Week. must recite that fact, and may dispense with notice, or may direct notice to be given in any manner which the judge thinks proper. But where the order to attend and be examined, or the warrant, has been served upon the judg ment debtor, a receiver may be appointed upon the return day thereof, or at the close of the examination, without further notice to him. § 2465. The judge must ascertain, if practicable, by the oath of the judgment debtor, or otherwise, whether an action, specified in article first of title fourth of chapter fifteenth of this act, or a special proceeding instituted as prescribed in article first of this title, is pending against the judgment debtor. If either is pending, and a receiver has not been appointed therein, notice of the application for the appointment of a receiver, and of all the subsequent proceedings respecting the receivership, must be given, in such a manner as the judge directs, to the judgment creditor prosecuting it. § 2466. Only one receiver of the property of a judgment debtor shall be appointed. Where a receiver thereof has already been appointed, the judge, instead of making the order prescribed in the last section but one, must make an order, extending the receivership to the special proceeding before him. Such an order gives to the judgment creditor the same rights, as if a receiver was then appointed upon his application; including the right to apply to the court to control, direct, or remove the receiver, or to subordinate the proceedings in or by which the receiver was appointed, to those taken under his judgment. § 2467. An order appointing a receiver, or extending a receivership, must be filed in the office of the clerk of the county, wherein the judgment-roll in the action is filed; or, if the special proceeding is founded upon an execution issued out of a court, other than that in which the judg ment was rendered, in the office of the clerk of the county, wherein the transcript of the judgment is filed. § 2468. The property of the judgment debtor is vested in a receiver, who has duly qualified, from the time of filing the order appointing him, or extending his receiver816. ship, as the case may be; subject to the following exceptions: 14 Id. 536. 117 N. Y.297. 117 N.Y.297. 1. Real property is vested in the receiver, only from the time when the order, or a certified copy thereof, as the case may be, is filed with the clerk of the county where it is situated. 2. Where the judgment debtor, at the time when the order is filed, resides in another county of the State, his personal property is vested in the receiver, only from the time when a copy of the order, certified by the clerk in whose office it is recorded, is filed with the clerk of the county where he resides. § 2469. [Am'd 1892, amendment to take effect September 1, 1892.] Where the receiver's title to personal property has become vested, as prescribed in the last section, it also extends back, by relation, for the benefit of the judgment creditor, in whose behalf the special proceeding was instituted, as follows: 1. Where an order, requiring the judgment debtor to attend and be examined, or a warrant, requiring the sheriff to arrest him and bring him before the judge, has been served, before the appointment of the receiver or the extension of the receivership, the receiver's title extends back so as to include the personal property of the judgment debtor, at the time of the service of the order or warrant, 2. Where an order or warrant has not been served, as specified in the foregoing subdivision, but an order has been made, requiring a person to attend and be examined, concerning property belonging, or a debt due, to the judgment debt r, the receiver's title extends to personal property belonging to the judgment debtor, which was in the hands or under the control, of the person or corporation thus required to attend, at the time of the service of the order; and to a debt then due to him from that person or corporation. 3. In every other case, where notice of the application for the appointment of the receiver was given to the judgment debtor, the receiver's title extends to the personal property of the judgment debtor, at the time when the notice was served, either personally, or by complying with the requirements of an order, prescribing a substitute for personal service. 4. Where the case is within two or more of the forcgoing subdivisions of this section, the rule most favorable to the judgment creditor must be adopted. But this section does not affect the title of a purchaser in good faith, without notice, and for a valuable consideration; or the payment of a debt in good faith, and without notice. 5. No person shall be appointed a receiver in this State who is not a resident thereof, nor shall any person continue to act as receiver after he ceases to be a resident thereof, and the judgment creditor may apply to the court or judge that appointed such receiver, within thirty days after said receiver ceases to be a resident of this State, for the appointment of another person in his place, upon such notice to the persons interested as the court or judge may direct. §§ 2470-2471. § 2470. Each county clerk must keep in his office & 'book, indexed to the names of the judgment debtors, styled "book of orders appointing receivers of judgment debtors." A county clerk, in whose office an order or a certified copy of an order is filed, as prescribed in section two thousand four hundred and sixty-seven or section two thousand four hundred and sixty-eight of this act, must immediately note thereupon the time of filing it, and, as soon as practicable, must record it in the book so kept by him. He must also, upon request, furnish forthwith to any party or person interested, one or more certified copies thereof. For each omission to comply with any provision of this section, a county clerk forfeits, to the party ag grieved, two hundred and fifty dollars, in addition to all; damages sustained by reason of the omission. § 2471. A receiver, appointed as prescribed in this article, is subject to the direction and control of the court out of which the execution was issued. Where an order has been made, extending a receivership to a special proceeding founded upon a subsequent judgment, the control over, and direction of, the receiver, with respect to that judgment, remain in the court to whose control and direc tion he was originally subject. TITLE XIII. [Added 1893.] To compel delivery of books to public officer. § 2471a. A public officer may demand from any person in whose possession they may be, a delivery to such officer of the books and papers belonging or appertaining to such office. If such demand is refused, such officer may make complaint thereof to any justice of the supreme court of the district, or to the county judge of the county in which the person refusing resides. If such justice or judge be satisfied that such books or papers are withheld, he shall grant an order directing the person refusing to show cause before him at a time specified therein, why he should not deliver the same. At such time, or at any time to which the matter may be adjourned, on proof of the due - service of the order, such justice or judge shall proceed to inquire into the circumstances. If the person charged with withholding such books or papers makes affidavit before such justice or judge that he has delivered to the 1 officer all books and papers in his custody which, within his knowledge or to his belief belong or appertain thereto, such proceedings before such justice or judge shall cease, and such person be discharged. If the person complained against shall not make such cath, and it appears that any such books or papers are withheld by him, such justice or judge shall commit him to the county jail until he delivers such books and papers, or is otherwise discharged according to law. On such commitment, such justice or judge, if required by the complainant, shall also issue his warrant directed to any sheriff or constable, commanding him to search, in the daytime, the places designated therein, for such books and papers, and to bring them before such justice or judge. If any such books and papers are brought before him by virtue of such warrant, he shall determine whether they appertain to such office, and if so shall cause them to be delivered to the complainant. CHAPTER XVIII. SURROGATES' COURTS, AND PROCEEDINGS THEREIN. TITLE I. ORGANIZATION, JURISDICTION, AND POWERS OF ABILITIES OF THE SURROGATE, AND THE PROVISIONS. TITLE II.-PROVISIONS RELATING GENERALLY TO THE PROCEEDINGS IN SURROGATES' COURTS, AND TO APPEALS FROM THOSE COURTS. TITLE V.-DISPOSITION OF THE DECEDENT'S REAL PROP- PROCEEDS. TITLE VI.-PROVISIONS RELATING ΤΟ A TESTAMENTARY TRUSTEE. TITLE VII.-PROVISIONS RELATING TO A GUARDIAN. TITLE I. Organization, jurisdiction, and powers of the court. Duties powers, and disabilities of the surrogate, and the officers of the court. Miscellaneous provisions. |