Third Department, November, 1911. ¿Vol. 147. KATE S. THOMPSON, Respondent, v. UNITED TRACTION COMPANY, Appellant. Third Department, November 29, 1911. Railroad -- negligence — injury by stumbling over rail verdict. charge Where in an action to recover for personal injuries received by a pedestrian who stumbled over the rail of a street railroad which projected above the level of the ground owing to the fact that the crosswalk had been torn up to lay the rail, the court has charged that under the evidence there was no duty on the railroad to lay or maintain the crosswalk at the level of the rail, there was no issuc for the jury, and a verdict for the plaintiff will be reversed. APPEAL by the defendant, the United Traction Company, from a judgment of the County Court of Albany county in favor of the plaintiff, entered in the office of the clerk of said county on the 26th day of May, 1911, upon the verdict of a jury for $1,500, and also from an order entered in said clerk's office on the 27th day of May, 1911, denying the defendant's motion for a new trial made upon the minutes. P. C. Dugan, for the appellant. Rollin B. Sanford, for the respondent. PER CURIAM: The action is to recover damages for personal injuries received from a fall occasioned by the plaintiff stumbling on the defendant's rail while walking across defendant's tracks at a crosswalk in the city of Albany. The rail had been newly laid, necessitating the tearing up of the crosswalk. The rail was at a proper level with the other tracks, but the flagstone of the crosswalk was depressed so that the rail projected about an inch and a half above its surface. It did not affirmatively appear upon the trial whether or not it was the duty of the defendant to maintain the pavement and crosswalk between and adjacent to its rails. At the request of the defendant the court charged "that it was not the duty of the App. Div.] Third Department, November, 1911. defendant to either lay or maintain this flagstone upon which the plaintiff walked," and further, "that it was not the duty of the defendant and it was not required to lower its rail to meet the surface of that flagstone which it was not its duty to maintain." Under this charge nothing was left for the jury to decide. If the defendant was under no duty to maintain the flagstone at a proper level with its rail it was not responsible for its condition or situation. That responsibility rested with the municipality. The defendant had a right to maintain its rails in the street and the court properly instructed the jury that it need not lower its rail to meet the level of the flagstone. Whether the inequality proved to exist was sufficient to charge the defendant with negligence provided it was its duty to maintain the flagstone we are not now called upon to decide. Under the law of the case as given to the jury we think the verdict was not justified, and that the judgment and order must be reversed and a new trial granted, with costs to the appellant to abide the event. All concurred. Judgment and order reversed and new trial granted, with costs to appellant to abide event. LIBBIE FEINBERG, Respondent, v. JOHN KUTCOSKY and MARY KUTCOSKY, Appellants. Third Department, November 15, 1911. Supplementary proceedings failure to appear contempt requisites of order practice prolonging supplementary proceedings unduly - power of court — collateral attack on judgment. Orders in supplementary proceedings are judge's orders, not court orders. The proceedings are civil in character. The failure of a judgment debtor to appear as ordered is a civil contempt. The order adjudging a judgment debtor in contempt for failing to appear must recite that the court has found that the failure has been such as to defeat, impair, impede or prejudice the right or remedy of the creditor, otherwise it is fatally defective. Third Department, November, 1911. [Vol. 147. 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 condemned. The judge has supervisory power over supplementary proceedings pending before a referee and on the application of the debtor should compel their termination within a reasonable time after a fair examination. The judgment of a Justice's Court cannot be attacked in proceedings supplementary to execution thereon. APPEAL by the defendants, John Kutcosky and another, from an order of the County Court of Clinton county, entered in the office of the clerk of said county on the 24th day of March, 1911, adjudging the defendants guilty of contempt of court. Arthur S. Hogue, for the appellants John E. Judge, for the respondent. PER CURIAM: Plaintiff filed a transcript of a judgment rendered in her favor in a Justice's Court against the defendants in the clerk's office of Clinton county, and issued an execution thereon which was returned by the sheriff wholly unsatisfied. Thereupon an order in supplementary proceedings was granted by the county judge of that county requiring the defendants to appear before a referee for examination. The defendant John appeared and was examined but the defendant Mary did not appear because of alleged illness. At the conclusion of his examination John executed an assignment of claims to grow due from boarders and the proceeding was adjourned. On the day of the adjournment he and the defendant Mary both failed to appear and upon an order to show cause why the defendants should not be punished for contempt they were found guilty of contempt of court and fined, and directed to appear before the referee for further examination. The order adjudging the defendants guilty of contempt in disobeying the direction of the referee to appear on the adjourned day stated that such disobedience was willful but did not state that it was found that their conduct defeated, impaired, impeded or prejudiced the rights of the plaintiff. Orders in supplementary proceedings are judges' orders and App. Div.] Third Department, November, 1911. not court orders (Code Civ. Proc. § 2434) and are proceedings of a civil character (Id. § 2433). Failure to originally appear for examination in pursuance of an order in supplementary proceedings, or upon an adjourned day, is a civil contempt and not a criminal one, and it is necessary that the order adjudging such contempt should recite that the court has found that the conduct of the party has been such as to defeat, impair, impede or prejudice the right or remedy of the other party to the proceeding. (Judiciary Law [Consol. Laws, chap. 30; Laws of 1909, chap. 35], $ 753; Matter of Ryan, 73 App. Div. 137; Dailey v. Fenton, 47 id. 418; Sherwin v. People, 100 N. Y. 351.) The order appealed from was fatally defective in this respect and must be reversed because of the failure to recite such finding. It does not appear that the defendant John was not fully examined at his first appearance before the referee and no reason is shown why an adjournment should have been taken. He lived a long distance from the office of the referee where he was required to appear, and the loss of time and expense of traveling were considerable. While a judgment creditor has the right to fully examine his judgment debtor and ascertain all that he can with respect to his property or lack of it, the practice is altogether too common of adjourning the proceeding from time to time and prolonging the examination merely for the purpose of annoying the judgment debtor. While the attention of the learned county judge was not called to the adjournment taken in the present case, this court takes this occasion to condemn such practice. Judges granting orders in supplementary proceedings have supervisory power over such examinations had before referees and on application of the judgment debtor can compel their termination within a reasonable time and after a fair examination, and should be alert so to do. There is no merit in the other points urged by the appellants. The judgment in the Justice's Court cannot be attacked in this proceeding. (O'Neil v. Martin, 1 E. D. Smith, 404; Saunders v. Hall, 2 Abb. Pr. 418; Courtois v. Harrison, 1 Hilt. 109; Brown v. Nichols, 42 N. Y. 26.) The return of the execution by the sheriff was not procured by the collusion of the plaintiff or her attorney and was, there fore, legal. Third Department, November, 1911. [Vol. 147. (Forbes v. Waller, 25 N. Y. 430; High Rock Knitting Co. v. Bronner, 18 Misc. Rep. 631.) The order must be reversed, with ten dollars costs and disbursements. All concurred. Order reversed, with ten dollars costs and disbursements. In the Matter of the Application to Punish WILLIAM BARNES, JR., Appellant, as for a Contempt in Not Answering Certain Questions in the Matter of the Investigation of the Departments and Offices of the City and County of Albany by the Senate Committee Composed of Hon. HOWARD R. BAYNE, Chairman, and Others, Respondents. Third Department, November 29, 1911. Witness-subpoena - contempt - refusal to testify and to produce books constitutional law. Section 856 of the Code of Civil Procedure, relating to the imprisonment of a person who refuses to be examined, or produce books and papers, pursuant to subpoena duly issued, is unconstitutional, in that it does not provide for notice to the person whose imprisonment is sought. HOUGHTON, J., dissented, but concurred in result, with opinion; BETTS, J., dissented, with opinion. APPEAL by William Barnes, Jr., from an order of the Supreme Court, made by a justice of the Supreme Court and entered in the office of the clerk of the county of Albany on the 20th day of November, 1911, directing a warrant to issue to the Albany county sheriff, commanding him to apprehend the appellant, and to commit him to jail until he answer certain questions and produce certain books and papers. William M. Ivins and Edgar T. Brackett, for the appellant. James W. Osborne and Arthur T. Warner, for the respondents. |