59 How. Pr. 507.

89.

8 Id. 48.

of this article, and duly served upon him, or an oral direction. given directly to him by a judge or referee, in the course of the special proceeding; or to attend before a judge or referee, according to the command of a subpoena, duly served upon him; may be punished by the judge, or by the court out of which the execution was issued, as for a contempt.

§ 2458. Upon what judgment, and to what county, the execution must have issued. [Am'd 1881, 1897 1 Civ. Pro. Amendment to take effect September 1, 1897.]-In order to entitle a judgment-creditor to maintain either of the special 140 N.Y. 447. proceedings authorized by this article, the judgment must 146 N. Y. 348. have been ren lered upon the judgment debtor's appearance 21 App. Div. or personal service of the summons upon him, for a sum not 172. less than twenty-five dollars or substituted service of the summons upon him in accordance with section four hundred and thirty-six of the code of civil procedure; and the execution must have been issued out of a court of record; and either:

1. To the sheriff of the county where the judgment deb tor has, at the time of the commencement of the special proceedings, a place for the regular transaction of business in person; or,

2. If the judgment debtor is then a resident of the state, to the sheriff of the county where he resides; or,

3. If he is not then a resident of the state, to the sheriff of the county where the judgment-roll is filed unless the execution was issued out of a court other than that in which the judgment was rendered, and, in that case, to the sheriff of the county where the transcript of the judgment is filed.

2459. If the judgment debtor, or other person, required to attend and be examined, as prescribed in this arti cle, or the officer of a corporation, required to attend in its behalf, is, at the time of the service of the order upon him, a resident of the State, or then has an office, within the State, for the regular transaction of business in person, he cannot be compelled to attend, pursuant to the order, or to any adjournment, at a place without the county wherein his residence or place of business is situated.

§ 2460. [Am'd 1881.] A party or a witness, examined in a special proceeding, authorized by this article, is not excused from answering a question, on the ground that his examination will tend to convict him of the commission of a fraud; or to prove that he has been a party or privy to, or knowing of, a conveyance, assignment, transfer or other disposition of property for any purpose; or that he or another person claims to be entitled as against the judgment creditor, or a receiver appointed or to be appointed in the special proceeding, to hold property, derived from or through the judgment debtor, or to be discharged from the payment of a debt which was due to the judgment debtor, or to a person in his behalf. But an answer cannot be used as evidence against the person so answering, in a criminal action or criminal proceeding.

2461. Where the execution was issued as prescribed

in the discretion of the surrogate, in a case where a person so named as executor, can entitle himself to letters testamentary only by giving a bond; but not otherwise.

§ 2854. The security to be given, as prescribed in the last two sections, must be a bond to the same effect, and in the same form, as the bond of a general guardian, appointed by the surrogate's court. Each provision of this chapter, applicable to the bond of such a guardian, and to the rights, duties, and liabilities of the parties thereto, or any of them, including the release of the sureties, and the giving of a new bond; applies to the bond so given, and the parties thereto.

§ 2855. [Am'd 1896, amendment to take effect September 1, 1896.] Upon the petition of the ward, or of any relative or other person in his behalf, the surrogate's court having jurisdiction to require security, as prescribed in the last three sections, may, at any time, in the discretion of the surrogate, make an order requiring a guardian appointed by will or by deed, to render and file an inventory and account, in the same form, and verified in the same manner as the inventory and account required to be filed annually by a guardian appointed by a surrogate's court, as prescribed in article second of this title. The order may also require such an inventory and account to be filed, in the month of January of each year thereafter. Sections twenty-eight hundred and forty-two to twenty-eight hundred and forty-five of this act, both inclusive, apply to such an inventory and account, and to the filing thereof, as if the guardian had been appointed by the surrogate's court. The provisions of section twenty-eight hundred and forty-six of this act shall apply to a guardian appointed by will or deed with the same effect as if such guardian had been mentioned in said section, and the proceedings therein prescribed may be had in the case of any such guardian in the same manner as if he were a general guardian.

§ 2856. [Am'd 1891.] The surrogate's court having jurisdiction to require security may compel a judicial settlement of the account of a guardian appointed by will or by deed, in any case where it may compel a judicial settlement of the account of a general guardian; and the proceedings to

procure such a settlement are the same as if the guardian so appointed by will or by deed had been a general guardian. A guardian appointed by will or by deed may present to the surrogate's court a written petition, duly verified, praying for a judicial settlement of his account, and a discharge from his duties and liabilities, in any case where a petition for a judicial settlement of his account may be presented by any other person as prescribed in this article. The petition must pray that the person who might have so presented a petition may be cited to attend the settlement. Upon the presentation of such petition the surrogate must issue a cita

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 debtor, the receiver's title extends to personal property belonging to the judgment debtor, which was in the hands or under the controi, 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.

556,

4. Where the case is within two or more of the foregoing 8 App. Div. subdivisions of this section, the rule most favorable to the 15 N. Y. 443 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.

§§ 2470-2471a

§ 2470. Each county clerk must keep in his office a 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 pres ribed 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.

15 App. Div.

571.

23 Misc. 752.

TITLE XIII.

[Added 1893.]

To compel delivery of books to public officer.

§ 2471a. A public officer may demand from any per son 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