as to the ownership. Humboldt Exploration Co. v. Fritsch (1912), 150 App. Div. 90, 134 N. Y. Supp. 747. So, too, the refusal of the court to order the receiver to summarily turn over the property to one claiming title is not a final adjudication as to the ownership, nor does it prevent the claimant from maintaining an action of replevin against the receiver. Humboldt Exploration Co. v. Fritsch (1912), 150 App. Div. 90, 134 N. Y. Supp. 747.

Although an original order directing payment to the sheriff by a third person, was made without notice to the third person, where the latter moved to vacate the order and his motion was denied, he has been afforded a hearing on the merits. Matter of Nichol v. Wilson (1916), 175 App. Div. 667, 161 N. Y. Supp. 870.

The payment of money by a third person in violation of a restraining order is without validity as against the judgment creditor, and furnishes no answer to a subsequent application to the court for an order directing the third person to pay the moneys to the sheriff. Matter of Nichol v. Wilson (1916), 175 App. Div. 667, 161 N. Y. Supp. 870.

A motion to vacate or modify an order requiring third persons to turn over to a receiver in proceedings supplementary to execution, certain personal property claimed to belong to the judgment debtor, can properly be made only to the judge who granted the order, or to the court out of which the execution upon the judg ment was issued. Matter of Flynn (1913), 80 Misc. 79, 140 N. Y. Supp. 799.

Recovery by receiver of judgment debtor of pledged securities, see Matter of Flynn (1913), 157 App. Div. 241, 141 N. Y. Supp. 807.

A court has no authority to issue a mandatory order requiring a savings bank to pay to a sheriff the sum of a deposit of a judgment debtor. Kantor Bros v. Wile (1916), 93 Misc. 438, 158 N. Y. Supp. 115.

An order providing that the judgment debtor "execute, acknowledge and deliver to such receiver a proper and valid assignment and conveyance of all his property and assets" is not authorized by the Code. The property of the judgment debtor vests in the receiver by operation of law, and no conveyance is necessary. Rourke v. Turrell (1912), 138 N. Y. Supp. 648.

ARTICLE XI.

DISMISSAL OR DISCONTINUANCE OF PROCEEDINGS.

(Fiero, Spec. Pro., 3rd Ed., pp. 1818-1820.)

A supplementary proceeding can only be discontinued or dismissed, upon such terms as justice requires, by an order of the judge made upon the application of the judgment debtor. Want of prosecution does not abate it. Roscoe Lumber Co. v. Payne (1914), 149 N. Y. Supp. 331.

It is not necessary that the first examination be discontinued before a second order can be made to reach after acquired property. Funk & Wagnalls Co. v. Nechamkin (1913), 3 Bradb. 431.

Where an order for the examination of a judgment debtor is allowed to lapse it falls and becomes a nullity, and no order of discontinuance need be entered as a prerequisite to a new order for his examination concerning his property. Matter of German Exchange Bank (1915), 92 Misc. 351, 155 N. Y. Supp. 924.

Where no service was made of an order for the examination of a judgment debtor, and its return has passed, it has no validity and may be disregarded except that the fact that it had been granted should be stated in an application for a new order; the entry of a formal order vacating the first order is unnecessary. Matter of Dorfman v. Jacobs (1917), 100 Misc. 592, 165 N. Y. Supp. 403.

Upon the institution of bankruptcy proceedings against the judgment debtor within four months after a judgment is rendered supplementary proceedings in aid of execution under such judgment become null and void. Roscoe Lumber Co. v. Payne (1914), 149 N. Y. Supp. 331.

ARTICLE XII.

COSTS.

(Fiero, Spec. Pro., 3rd Ed., pp. 1820-1821.)

Costs and allowances were held to be excessive in Matter of Kutcosky (1912), 153 App. Div. 526, 138 N. Y. Supp. 263.

ARTICLE XIII.

MISCELLANEOUS MATTERS OF PRACTICE.

(Fiero, Spec. Pro., 3rd Ed., pp. 1821-1826.)

While a judgment creditor has the right fully to examine the debtor as to his property, the practice of adjourning the proceeding from time to time merely to prolong it and to annoy the debtor is to be condemned. Fienberg v. Kutcosky (1911), 147 App.

Div. 393, 132 N. Y. Supp. 9.

A subpoena must be issued under the hand of the judge or referee before whom the proceeding is pending. Matter of Wilson v. Bracken (1912), 150 App. Div. 577, 135 N. Y. Supp. 435. Where no proceeding is pending at which the witness can testify, a subpoena requiring him to appear will be vacated. Matter of Steinman v. Conlon (1912), 150 App. Div. 708, 135 N. Y. Supp. 740.

ARTICLE XIV.

CONTEMPTS.

(Fiero, Spec. Pro., 3rd Ed., pp. 1826-1845.)

SUBD. 1. Jurisdiction

2. Procedure.

3. Violation of injunction.

4. Refusal to appear and testify, or testifying falsely.

7. Punishment.

8. The order adjudging the debtor in contempt.

Subd. 1. Jurisdiction.

(Fiero, Spec. Pro., 3rd Ed., pp. 1826-1828.)

A defendant in supplementary proceedings can be punished only for a violation of an order, either oral or in writing, given to him by a judge or referee. He cannot, or at least should not, be punished as for a contempt of court simply for failing to do as he agreed. Jones v. Rettig (1917), 98 Misc. 487, 164 N. Y. Supp. 730.

Subd. 2. Procedure.

(Fiero, Spec. Pro., 3rd Ed., pp. 1828-1831.)

Proceedings to punish a party for contempt are to be regarded as a step incidental to and taken in a supplementary proceeding

and not as an independent special proceeding. Matter of Steinmann v. Conlon (1913), 208 N. Y. 198.

An order adjudging a debtor guilty of contempt for violation of an order against the disposition of his property cannot be made immediately after the close of the debtor's examination without notice by way of order to show cause or otherwise where it is not even pretended that the alleged contempt was committed in the presence of the court. Kern v. Zappa (1916), 159 N. Y. Supp. 76.

A judgment debtor, on motion to punish him for contempt for failure to appear for examination in supplementary proceedings, is entitled to notice of the precise claim made against him and for what omission or misconduct he should be punished; each fact necessary to sustain the jurisdiction of the court should be made to appear by an affirmative statement. Aborn v. Herbert, Robertson & Co. (1916), 94 Misc. 637, 158 N. Y. Supp. 565.

Subd. 3. Violation of Injunction.

(Fiero, Spec. Pro., 3rd Ed., pp. 1831-1833.)

Accidental and unintentional violation of the judge's order should not be visited with discipline where the creditor's rights are in no respect injured. B. Wasserman Co. v. Vaudeville Comedy Club (1916), 160 N. Y. Supp. 1047.

A payment made by a judgment debtor on the same day a restraining order was issued, but before the service of the order, is not a contempt of court. Sturm v. Parsons (1912), 134 N. Y. Supp. 584.

A judgment debtor who disposes of what interest he may have in a tontine policy upon his life made payable to his wife is not liable to a fine as for contempt for violation of an injunction order against any disposition by him of his property where it clearly appears that the guaranteed reserve value of the policy was at lease $500 less than loans previously made thereon. Hall v. Hess (1916), 97 Misc. 331, 161 N. Y. Supp. 418.

Unless it appears that small sums paid out by a debtor while a restraining order was in force were paid from moneys that he had at the time of the service of the order he cannot be punished for contempt. Protter v. Lovell (1915), 91 Misc. 417, 155 N. Y. Supp. 275.

A payment by a judgment debtor, after the service of a restraining order, of a sum of money for board and another sum for his wife's expenses, is not a violation of the order. Sturm v. Parsons (1912), 134 N. Y. Supp. 584. Where, after the service of a restraining order in proceedings supplementary to execution, the judgment debtor, who was engaged in business as an iron worker employing several workmen, received moneys in excess of the judgment for work done prior to the institution of the proceedings and disposed of the same in payment of wages to employees' rent, household expenses and other business and personal expenses, he is properly adjudged in contempt. Schafer v. Tyroler (1916), 94 Misc. 637, 158 N. Y. Supp. 565. A judgment debtor engaged in conducting a dairy farm who while an injunction in supplementary proceedings was in force expended the sum of $130 in payment for groceries, wages of employees and made payment upon a chattel mortgage on a team of horses, is guilty of contempt. Matter of Teelon (1914), 87 Misc. 361, 150 N. Y. Supp. 729.

The filing of a petition in bankruptcy by a judgment debtor on whom an order in proceedings supplementary to execution has been served and is pending is not a contempt of court.

Bielby (1914), 86 Misc. 644, 149 N. Y. Supp. 592.

Norton v.

Where the judgment debtors, who were ignorant foreigners, were not informed that there was a restraining order in the papers served upon them and the order was not read to them it was held that the order adjudging them in contempt for receiving and disbursing money in violation of the restraining order was contrary to the evidence. Matter of Kutcosky (1912), 153 App. Div. 526, 138 N. Y. Supp. 263.

Subd. 4. Refusal to Appear and Testify, or Testifying Falsely. (Fiero, Spec. Pro., 3rd Ed., pp. 1833-1837.)

A judgment creditor should in some manner indicate his dissatisfaction with answers given by a judgment debtor and attempt to obtain more specific statements before resorting to the remedy of a proceeding to punish for contempt. Matter of Shorwitz v. Caminez (1912), 152 App. Div. 758, 137 N. Y. Supp. 545; followed in Baum v. Rosenberg (1915), 155 N. Y. Supp. 404.

That no certified copy of a contempt order was served on a