duce and examine other witnesses, as upon the trial of ar action. The judge or referee may adjourn any proceedings, under this article, from time to time, as he thinks proper.

Substituted for Code of Proc., 292 and 296, or such parts thereof as relate to examinations. Canavan v. McAndrew, 20 Hun, 46; Kaufman . Thrasher, 10 d. 438; Mason v. Lee, 23 How. 466; Orr's Case, 2 Abb. 457: Lockwood v. Wartzell, 15 id. 430 n; People v. Marston. 18 id. 257; Carter v. Clarke, 7 Rob. 490; Hudson v. Plets, 11 Paige, 180; 3 N. Y. Leg. Obs. 120; Allen v. Starring, 26 How. 57; Graham v. Colburn, 14 id. 52; 6 Duer, 678; Morrell v. Hey, 15 Abb. 430; 24 How. 48; Corning v. Tooker, 5 id. 16; Sherwood v. Dolen, 14 Hun, 191: Lathrop v. Clapp, 40 N. Y. 328; Sandford r. Carr, 2 Abb. 462; Graves r. White, 12 How. 33; LeRoy v. Halsey, 1 Duer, 589; Williams v. Carroll, 2 Hilt. 438; Wicker v. Dresser, 14 How. 465; Forbes v. Willard, 37 id. 193; 54 Barb. 520.

$2445. Referee to be sworn.-Unless the parties expressly waive the referee's oath, a referee, appointed as prescribed in this article, must, before entering upon an examination, or taking testimony, subscribe and take an oath, that he will faithfully and fairly discharge his duty upon the reference, and make a just and true report, according to the best of his understanding. The oath may be administered by an officer designated in section 842 of this act, and must be returned to the judge, with the report or testimony.

New. See 1016, ante.

2446. Order permitting person indebted to pay debt to sheriff.-At any time after the commencement of a special proceeding, authorized by this article, and before the appointment of a receiver therein, or the extension of a receivership thereto, the judge, by whom the order or warrant was granted, or to whom it is returnable, may, in his discretion, upon proof, by affidavit, to his satisfaction, that a person or corporation is indebted to the judgment debtor, and upon such a notice, given to such persons, as he deems just, or without notice, make an order, permitting the person or corpora tion, to pay to a sheriff, designated in the order, a sum, on account of the alleged indebtedness, not exceeding the sum which will satisfy the execution. A payment thus made is, to the extent thereof, a discharge of the indebtedness, except as against a transferee from the judgment debtor, in good faith and for a valuable consideration, of whose rights the person or corporation had actual or constructive notice, when the payment was made.

Code of Proc., 293, amended. See Calkins . Packer, 21 Barb. 275, 283; Richardson v. Ainsworth, 20 How. 521; Leyman e. Cartwright, 3 E. D. Smith, 117: Robinson . Weeks, 6 How. 161; Countryman . Boyce, 3 id. 386; Huse v. Guyot, 3 T. & C. 790; Bishop r. Garcia, 14 Abb. N. S. 69: Hale r. Olney, 65 Barb, 27; Mallory v. Norton, 21 id. 424: Davenport v. Ludlow, 3 C. R. 66; Handly v. Greene, 15 id. 601; Baker v. Kenworthy, 41 N. Y. 215; Duffeld v. Norton, 73 id. 218; Adams e. Welch, 43 N. Y. Super. 52.

2447. Order requiring delivery of money or property to sheriff or receiver.-Where it appears, from the examination or testimony taken in a special proceeding authorized by this article, that the judgment debtor has, in his possession or under his control, money or other personal property, belonging to him; or that one or more articles of personal property, capable of delivery, his right to the possession whereof is not substantially disputed, are in the possession or under the control of another person; the judge, by whom the order or warrant was granted, or to whom it is returnable, may, in his discretion, and upon such a notice, given to such persons, as he deems just, or without notice, make an order, directing the judgment debtor, or other person, immediately to pay the money, or deliver the articles of personal property, to a sheriff, designated in the order, unless a receiver has been appointed, or a receivership has been extended to the special proceeding, and in that case to the receiver.

Substituted for Code of Proc., 297. Lynch v. Johnson, 48 N. Y. 27: Potter v. Low, 16 How. 549; Atkinson . Lewine, 11 Abb. N. S. 384; Stewart r. Forster, 1 Hilt. 505; McCormick v. Kehoe, 7 N. Y. Leg. Obs. 181; Westside Bank v. Pugsley, 47 N. Y. 368; s. c., 12 Abb. N. S. 5: Campbell v. Foster, 35 N. Y. 361; Locker. Mabbett, 2 Keyes, 457; Graff v. Bennett, 31 N. Y. 9; s. c., 2 Rob. 54; 25 How. 470; Genet v. Foster, 18 How. 50; Woodman r. Goodenough, 18 Abb. 265; Watrous r. Lathrop, 4 Sandf. 700; Ten Broek v. Sloo, 2 Abb. 234; s. c., 13 How. 28; Davenport v. Ludlow, 3C. R. 66; 8. c., 4 How. 337; Hudson r. Plets, 11 Paige, 180: Sands v. Roberts, 8 Abb. 313; Browning. Bettis, & Paige, 568; McCoun v. Dorsheimer, Clarke, 144; Ireland . Smith, 1 Barb. 419; Caton e. Southwell, 13 id. 335; Stewart v. Martin, 5 id. 438; Moak r. Coates, 33 id. 498; Beamish r. Hoyt, 7 Rob. 307: Gerregani . Wheel wright, 3 Abb. 264; Barnes r. Morgan, 3 Hun, 703; Bush r. White, 12 Abb. 21; Tripp v. Childs, 14 Barb. 85; Cummings v. Timberman, 49 How. 236; Martin r. Sheriden, 2 Hilt. 586; Van Vechten v. Hull, 14 How, 436; Cox r. Stafford, 15 id. 519; Tillotson v. Wolcott, 48 N. Y. 188: 124, ante; Bunn v. Fonda, 2 C. R. 70; Baily v. Ryder, 10 N. Y. 363; Jenner 2. Sanborn, 37 Barb. 610; Alexander r. Richardson, 7 Rob. 64; Sandford . Moshier, 13 How. 163; People v. Cowles, 34 id. 481; Croutset. Whipple, id. 333; Peters v. Kerr, 22 id. 3; Hall v. McMahon, 10 Abb. 103; Gasper v. Bennett, 12 How. 307; Clapp v. Lathrop, 40 N. Y. 35; 8. C., 23 How, 423; Teller r. Randall, 26 id. 155; Barnard . Kobbe, 51 N. Y. 516; s. c., 3 Daly, 372: Beeber. Kenyon, 3 Hun, 73; Rodman r. Henry, 17 N. Y. 484: Teller v. Randall, 40 Barb. 212; Havens v. Nat. City Bank of Brooklyn, 4 Hun, 131; Glenville Woolen Co. v. Ripley, 43 N. Y. 26; Reynolds . McElhone, 20 How. 454; Kearney's Case, 13 Abb, 439; Holstein v. Rice, 15 il. 307; Joyce e. Holbrook, 7 11. 3; Hautman r. Cat

lin, 1 E. D. Smith, 130; Gibson v. Haggerty, 37 N. Y. 558; Waldheim v. Bender, 36 How. 181; Mosier v. Lees, Daily Reg., Aug. 24, 1878; Hentz v. McGee, 1 Law Bull. 3.

§ 2448. Duty of the sheriff.—If the sheriff, to whom money is paid, or other property is delivered, pursuant to an order made as prescribed in either of the last two sections, does not then hold an execution upon the judgment against the property of the judgment debtor, he has the same rights and powers, and is subject to the same duties and liabilities, with respect to the money or property, as if the money had been collected, or the property had been levied upon by him, by virtue of such an execution; except as otherwise prescribed in the next section.

Code of Proc., 297; see cases cited under last section. Baker v. Kenworthy, 41 N. Y. 215; Adams v. Welsh, 43 N. Y. Super. Ct. 52.

But

2449. How money or property applied to pay the judgment. After a receiver has been appointed, or a receivership has been extended to the special proceeding, the judge must, by order, direct the sheriff to pay the money or the proceeds of the property, deducting his fees, to the receiver; or, if the case so requires, to deliver to the receiver the property in his hands. if it appears, to the satisfaction of the judge, that an order, appointing a receiver or extending a receivership, is not necessary, he may, by an order reciting that fact, direct the sheriff to apply the money so paid, or the proceeds of the property so delivered, upon an execution in favor of the judgment creditor, issued either before or after the payment or delivery to the sheriff.

Code of Proc., 297 and 298. People v. King, 9 How. 97; Dickinson v. Van Tine, 1 Sandf. Sup. Ct. 724, 728; Kearney's Case, 13 Abb. 459; Rodman . King, 17 N. Y. 482; Goodyear e. Betts, 7 How. 197; s.C., 1 Duer, 65; 5 How, 29; Corning v. Tooker, id. 16; see, also, cases cited under 2447, ante.

$2450. Balance to be paid or delivered to judgment debtor, etc.-Where money is paid, or property is delivered, as prescribed in the last four sections, and afterwards the special proceeding is discontinued or dismissed; or the judgment is satisfied, without resorting to that money or property; or a balance of the money, or of the proceeds of the property, or a part of the property, remains in the sheriff's or the receiver's hands, after satisfying the judgment, and the costs and expenses of the special proceeding; the judge must make an order,

directing the sheriff or receiver to pay the money, or deliver the property, so remaining in his hands, to the judgment debtor, or to such other person as appears to be entitled thereto, upon payment of his fees, and all other sums legally chargeable against the same.

New in form. See cases,cited under ? 2446, ante.

$2451. Judge may enjoin transfer, etc., of property. -The judge by whom the order or warrant was granted, or to whom it is returnable, may make an injunction order, restraining any person or corporation, whether & party or not a party to the special proceeding, from making or suffering any transfer or other disposition of, or interference with, the property of the judgment debtor, or the property or debt, concerning which any person is required to attend and be examined until further direction in the premises. Such an injunction order may be made simultaneously with the order or warrant, by which the special proceeding is instituted, and upon the same papers; or afterwards, upon an affi. davit, showing sufficient grounds therefor. The judge or the court may, as a condition of granting an applica tion to vacate or modify the injunction order, require the applicant to give security, in such a sum and in such a manner, as justice requires.

Code of Proc., 298 and 299, amended. People ex rel. Morris r. Randall, 73 N. Y. 416; Morris e. First National Bank, 68 id. 362; Green v. Bullard, 8 How. 316; Taggard v. Talcott, 2 Edw. Ch. 625 Potter v. Low, 16 How. 549; Parker v. Wakeman, 10 Paige, 485; McCredier. Senior, 4 id.378; Lansing r. Easton, 7 id. 364; Ross r. Claussman, 3 Sandf 676; see 14, ante; Richardson v. Rust, 9 Paige, 243; Ireland r. Smith, 3 How. 244; Newell v. Cutler, 19 Hun, 74; People ex rel. Morris v. Randall, 73 N. Y. 416.

$2452. Mode of service of certain orders. — An injunction order, or an order requiring a person to attend and be examined, made as prescribed in this article, must be served as follows:

1. The original order, under the hand of the judge making it, must be exhibited to the person to be served.

2. A copy thereof, and of the affidavit upon which it was made, must be delivered to him.

Service upon a corporation is sufficient if made upon an officer, to whom a copy of a summons must be delivered, where a summons is personally served upon the

corporation; unless the officer is specially designated by the judge, as prescribed in section 2444 of this act.

New. Based on 2 R. S. 401, 44 (2 Edm. 417). See Green v. Bullard, 8 How. Pr. 313; Utica City Bank v. Buell, 17 id. 498; 9 Abb. Pr. 385; Farqueharson v. Kimball, 18 How. Pr. 33; Barker r. Johnson, 4 Abb. 435; Henderson v. Stone, 2 Sweeney, 468; s. 8., 40 How. 333; Arctic Ins. Co. v. Hicks, 7 Abb. 204; Billings v. Carver, 54 Barb. 40; Newell v. Cutler, 19 Hun, 74; Johnson v. Tuttle, 17 Abb. 315.

$2453. Service of a warrant.

The sheriff, when he arrests a judgment debtor by virtue of a warrant, issued as prescribed in this article, must deliver to him a copy of the warrant, and of the affidavit upon which it was granted.

New.

2454. How proceedings discontinued or dismissed. A special proceeding, instituted as prescribed in this article, may be discontinued at any time, upon such terms as justice requires, by an order of the judge, made upon the application of the judgment creditor. Where the judgment creditor unreasonably neglects or delays to proceed, or where it appears that his judgment has been satisfied, his proceedings may be dismissed, upon like terms, by a like order, made upon the application of the judgment debtor, or of the plaintiff in a judgment creditor's action against the debtor, or of a judgment creditor who has instituted either of the special proceedings authorized by this article. Where an order appointing a receiver, or extending a receivership, has been made, in the course of the special proceeding, notice of the application for an order specified in this section, must be given, in such a manner as the judge deems proper, to all persons interested in the receivership, as far as they can conveniently be ascertained.

New. Squire r. Young, 1 Bosw. 690; Fellerman's Case, 2 Abb. Pr. 155; Cowdry r. Carpenter, 17 id.107; Farqueharson v. Kimball, 18 How. Pr. 33; 9 Abb. Pr. 35, n; Bennett v. McGuire, 58 Barb, 625; s. c., 5 Lans. 183; Thomas r. Kircher, 15 Abb. N. S. 342; Ballou . Boland, 14 Hun, 355; Kennedy r. Norcott, 54 How. 88; Underwood v. Sutcliffe, 10 Hun, 453; Ammision r. Wolcott, 15 Abb. 314; Carter v. Clarke, 7 Rob, 490; Stanly . Lovett, 14 Hun, 412; Schanck v. Conover, 56 How. 437; Lilliendahl v. Fellerman, 11 How. 528.

2455. Costs to judgment creditor. - The judge may make an order allowing to the judgment creditor a fixed sum, as costs, consisting of his witnesses' fees and other disbursements, and of a sum, in addition thereto, not exceeding thirty dollars; and directing the payment