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competent v: riiten evidence, is entitled to an order, requiring the debtor under the judgment or order, 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 specitied in the order.

$ 2437. Upon proof entitling a judgment creditor to an 59 How. Pr. order, under either of the last two sections; and also proof, 452. by affidavit, to the satisfaction of the judge, that there is 20 ML

State Rep. 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.

8 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 atiend 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 moditied, 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 be bas 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 sim 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

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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 forth with, 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 ihe proceedings. 38 App. Div. § 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 concero ing 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 be fore 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 oall. A corporation must attend by, and answer under the oath of, an oflicer 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

16 Misc. 615.

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for the purposes specified in the next section, examine or cause to be examined, under his direction, all inventories and accounts of guardians filed since the first day of February oi the preceding year. The examination may be made by the clerk of the surrogate's court, or by a person specially appointed by the surrogate to make it, who must, before he enters upon the examination, subscribe and take before the surrogate, and file with the clerk of the surrogate's court, an oath faithfully to execute his duties, and to make a true report to the surrogate. Where the surrogate seasonably certifies in writing to the board of supervisors, or in the county of New York, to the board of aldermen, that the examination required by this action cannot be made by him, or by the clerk of the surrogate's court, or by any clerk, employed in his office and paid by the county, the board must provide for the compensation of a sutable person to make the examination.

$ 2845. If it appears to the surrogate, upon an exami. nation made as prescribed in the last section, that a general guardian of an infant's property, appointed by letters issued from his court, has omitted to tile his annual inventory or · account, or the affidavit relating thereto, as pre:cribed in

the last section but one ; or if the surrogate is of the opinion, that the interest of the ward requires that the guardian should render a more full or satisfactory inventory or account; the surrogai3 must make an order, requiring the guardian to supply the deficiency, and also, in his discretion, requiring the guardian personally to pay the expense of serving the order upon him. Where the guardian fails to comply with such an order, within three months after it is made; or where the surrogate has reason to believe that sufiicient cause exists for the guardiau's removal, the surrogate may, in his discretion, appoint a fit and proper person special guardian of the ward, for the purpose of tiling a petiti n in his behalf, for the removal of the guardian, and prosecuting the necessary proceedings for that pur pose.

§ 2846. Upon the petition of the general guardian of an 4 Dem. 145. infant's person or property; or of the infant; or of any relative or other person in his behalf: the surrogate, upon notice to such persons, if any, as he thinks proper to notify may make an order, directing the application, by the guardian of the infant's property, to the support and education ci the infant, of such a sum as to the surrogate seems prorer, out of the income of the infant's property; or, where tho income is inadequate for that purpose, out of the principal.

$ 2847. : Im'd 1890.) A written petition, duly verified, praying for the judicial settlement of the account of a general guardian of an infant's pr perty, and that he may be cited to attend the settlement thereof, may be presente to the surrogate's court, in either of the following cases •

1. By the ward, after he has attained his majority.

2. By the executor or administrator of a ward, who has died.

3. By the guardian's successor, including a guardian appointed after the reversal of a decree, appointing the per. son so required to account.

4. By a surety in the official bond of a guardian whose letters have been revoked; or by the legal representative of such surety. Citation under this subdivision must be directed to both the guardian and the ward.

$ 2848. [Am'd 1881.] A petition, for the judicial settle. ment of the account of a general guardian of an infant's person, may be presented, as prescribed in the last section, or by the general guardian of the infant's property ; but upon the presentation thereof, proof must be made to the surrogate's satisfaction, that the guardian so required to account has received money or property of the ward, for which he has not accounted; or which he has not paid or delivered to the general guardian of the infant's property; and a guardian of the estate only of a minor shall be, for the purposes of this chapter, deemed a general guardian.

§ 2849. [Am'd 1893.) A guardian may present to the surrogate's court a written petition, duly verified, praying for a julicial settlement of his account and a discharge from his duties and liabilities, in any case where a petition for a ju. dicial settlement of his account may be presented by any other person as prescribed in either of the last two sections. The petition must pray that the person who might have so presented a petition, and also the sureties in his official bond of such guardian or the legal representatives of such surety may be cited to attend the settlement.

$ 28511. (Am'd 1882, 1887.] Upon the presentation of a petition, as j'rescribed in either of the last three sections, the surrogate must issue a citation accordinglySection two thousand seven hundred and twenty-seven, sections two thousand seven hundred and thirty three to two thousand seven hundred and thirty-seven, both inclusive, and seotions two thousand seven hundred and forty-one and two thousaud seven hundred and forty-four of this act apply to a guardian accounting as prescribed in this article, and regulate the proceedings upon such an accounting. The accounting party must annex to every account produced and filed by him an affidavit, in the form prescribed in this ar. ticle for the affidavit to be annexed by him to his annual inventory and account. A guardian designated in this title is ent tled to the same compensation as an executor or administrator.

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§ 2851. A person shall not exercise, within the State, any 2 Dem. 4 power or authority, as guardian of the person or property 65 How. Pr. of an infant, by virtue of an appointment contained in the will of the infant's father or mother, being a resident of the State, and dying after this chapter takes effect, unless the will has been duly admitted to probate, and recorded in the proper surrogate's court, and letters of guardianship have been isssued to him thereupon ; or by virtue of an appointment contained in a deed of the infant's father or mother, being a resident of the State, executed after this chapter takes effect, unless the deed has been acknowledged or proved, and certified, so as to entitle it to be recorded, and has been recorded in the office for recording deeds in the county, in which the person making the appointment

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