New York County NyArchives Court.....Sickle, Isaac 1889
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/ny/nyfiles.htm
************************************************
File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 2, 2008, 1:39 pm

Source: Reports Of Cases - New York
Written: 1889

First Department, May Term, 1889.

In the Matter of the Examination in Proceedings Supplementary to execution of 
Isaac Sickle, Judgment-Debtor, on the Application of T. RUSSELL DAWSON, Judgment-
Creditor.

Action to have an assignment adjudged to be invalid — it is not a bar to 
proceedings supplementary to execution or to an examination of the assignee as a 
witness therein.

A judgment-creditor, by electing to bring an action to have an assignment made 
by the judgment-debtor adjudged to be invalid, does not waive his right in 
proceedings supplementary to execution to compel the assignee to appear as a 
witness and to testify in such proceedings, and to produce certain books in the 
custody of the witness as assignee of the judgment-debtor. 

In the Matter of Assignment of Holbrook (99 N. Y., 538); Dick v. Philips (41 
Hun, 603) distinguished; Schloss v. Wallach (16 Abb. N. C., 319 n.; 38 Hun, 638; 
102 N. Y., 683) followed. 

The fact that, in such a proceeding, the questions asked of a judgment-debtor or 
of a witness tend to show that the judgment-debtor has made a fraudulent 
assignment, affords no valid objection to such questions. 

There is nothing in the provisions of section 1914 of the Code of Civil 
Procedure which precludes an examination of this character in proceedings 
supplementary to execution.

Appeal by Herman Cantor, a witness in supplementary proceedings, from an order 
made at the New York Special Term adjudging him guilty of contempt in refusing 
to answer certain questions, which order was entered in the office of the clerk 
of the county of New York.

Blumenstiel & Hirsch, for the appellant.

Charles E. Hughes, for the judgment-creditor, respondent.

Bartlett, J. :

The respondent, T. Russell Dawson, recovered a judgment against Isaac Sickle, 
and, upon the return of the execution unsatisfied, obtained the usual order for 
the examination of the judgment-debtor concerning his property. In these 
proceedings, supplementary to execution, he caused a subpoena to be served upon 
Herman Cantor, the appellant, to appear and testify therein and to produce 
certain books in the custody of the witness as assignee of the judgment-debtor. 
Mr. Sickle was first examined and testified that he made an assignment for the 
benefit of his creditors on November 16, 1887. Mr. Cantor was then sworn as a 
witness, and stated that he was the assignee of Mr. Sickle and had taken 
possession of the books in his store, all of which he produced at the hearing, 
One of these he identified as Mr. Sickle's check-book. He also stated that he 
had a number of checks in his possession that had been drawn by Mr. Sickle prior 
to the assignment. At the instance of counsel for the judgment-debtor, however, 
the witness declined to answer the question whether any of these checks were 
drawn in November, 1887, or how many were drawn within two months of the 
assignment, or how many were drawn within two weeks thereof to the order of Mr. 
Sickle, or the order of any of his sons, or of any person identified with him in 
business, or to bearer. The witness also declined to turn to the check-book and 
checks that he had produced and give the dates and amounts thereof, or to state 
whether there was any entry on the stub of the check-book of a check drawn by 
Mr. Sickle in November, 1887, to his own order, or cash, or to the order of one 
of his sons, for $800, or $850 or, $950. The objections to these questions, or 
rather the reasons which the witness gave for declining to answer them, under 
the advice of the counsel for the judgment-debtor, were subsequently discussed 
before Mr. Justice Lawrence, who directed that the witness should answer them 
all. Thereupon the questions were again put to Mr. Cantor and he again declined 
to answer. For this refusal he has been adjudged guilty of contempt, by the 
order from which the present appeal is taken.

In the brief for the appellant it is stated that Mr. Dawson, the judgment 
creditor, after instituting the present supplementary proceedings, commenced a 
creditor's action to set aside the general assignment made by Mr. Sickle to Mr. 
Cantor. I do not find anything in the appeal papers to show that such a suit has 
been instituted, but, inasmuch as the case appears to have been disposed of 
below upon the assumption that such was the fact, the existence of such an 
action may as well be assumed for the purposes of this appeal. The appellant 
insists that by electing to bring an action to invalidate the assignment the 
judgment-creditor has waived his remedy in the present proceeding, so far as he 
seeks to obtain the information indicated by the questions put to the witness; 
and, furthermore, that an assignee under a general assignment cannot be 
compelled, by mere subpcena, to produce the books and papers of the estate, and 
make discovery.

In considering these points, which are the only objections upon which the 
appellant relies, it is important to keep in mind the precise position which the 
appellant really occupies in the supplementary proceedings. He is in no sense a 
party to such proceedings. The parties are Dawson, the judgment-creditor, and 
Sickle, the judgment-debtor. 

Cantor is not made a party by the fact that heretofore Sickle has made an 
assignment to him. If that transaction had any effect to make him a party to the 
supplementary proceedings, he would be a party thereto just as much whether any 
subpoena had been served upon him to appear and testify as a witness or not. He 
comes into these supplementary proceedings as a witness, and in no other 
capacity; his attendance being enforced under the authority of section 2444 of 
the Code of Civil Procedure, which provides that in proceedings supplementary to 
execution 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." This 
provision gives a judgment-creditor, prosecuting supplementary proceedings, just 
the same rights, in respect to enforcing the attendance and conducting the 
examination of witnesses in his behalf, as a plaintiff would have in the trial 
of a suit at law, including the right to compel the production of books and 
papers by subpcena duces tecum. In the Matter of the Assignment of Holbrook (99 
Y. 538), it was not decided that judgment-creditors are prohibited from 
examining an assignee of the judgment-debtor, but merely that proceedings for 
the examination of witnesses under the general assignment act are warranted only 
when taken in aid of an assignment, and not in hostility thereto. This is 
because all proceedings taken under the general assignment act necessarily 
assume the validity and bona fides of the assignment; and hence it was held that 
a creditor who desired to attack the instrument could not do so in the course of 
a proceeding conducted under and pursuant to that statute, but must resort to 
other remedies.

Nor has the case of Dick v. Phillips (41 Hun, 603) any application here. That 
case related not to an examination in supplementary proceedings, nor to the 
examination of a witness upon the trial of an action, but to the examination of 
a party before trial, and the court held that, under the present Code of Civil 
Procedure, a party could not be compelled to produce books and papers for the 
inspection of his adversary before trial, except in the mode prescribed in the 
article; relating to discovery. (Sections 803-809.) But, as has already been 
shown, the fact that Mr. Cantor is a party to the judgment-creditor's action 
does not make him a party to these supplementary proceedings; and, therefore, 
there is no force in the argument that he can only be compelled to produce his 
books and papers herein by a proceeding founded upon petition.

The case of Schloss v. Walloch (16 Abb. N. C., 319 n; 38 Hun, 638; 102 N. Y., 
683) is an authority against the appellant's position and directly in point. 
There it was originally held at chambers that supplementary proceedings were a 
substitute for the old creditor's bill, and that where the creditor has resorted 
to the latter he could not endeavor to obtain evidence to support his bill in 
supplementary proceedings founded upon the same judgment. This decision was 
reversed by the General Term without any opinion, and the case was subsequently 
taken to the Court of Appeals where the appeal was dismissed. The counsel for 
the appellant concedes that the effect of these decisions is "that a judgment-
creditor may take any number of remedies against his debtor, and that by so 
doing he makes no election, but they are all concurrent remedies." This 
proposition, however, the appellant contends, does not affect the question 
whether an assignee can be compelled in supplementary proceedings to testify 
from books and papers; but that question is disposed of by what has already been 
said in respect to the character in which the appellant comes into the present 
proceedings. He is here as a mere witness, and not in any sense as a party, and, 
unless he be regarded as a party, his counsel's contention on this part of the 
case must fail. I find nothing in this proceeding which is in conflict with the 
provisions of section 1914 of the Code of Civil Procedure; that section provides 
that an action cannot be maintained to obtain a discovery, under oath, in aid of 
the prosecution, or defense of another action. But this is not such an action. 
It is simply a supplementary inquiry conducted for the sole purpose of 
ascertaining whether the judgment-debtor has any property lawfully applicable to 
the payment of the judgment against him. The witness is properly examined 
concerning matters pertinent to such inquiry; and the fact that what he says may 
be useful in another litigation does not deprive the judge of jurisdiction to 
examine him. In such a proceeding the fact that the questions asked of a 
judgment-debtor, or of a witness, tend to show that the judgment-debtor has made 
a fraudulent assignment, is no valid reason why such questions should not be 
answered. (Lathrop v. Clapp, 40 N. Y., 328.)

The questions asked of the appellant in this proceeding were proper; it was his 
duty to answer them, and his refusal to do so was a contempt for which he has 
been none too severely punished.

The order appealed from should be affirmed, with costs and disbursements.

Daniels, J.:
I concur in the opinion of Justice Bartlett for the reasons he has given, and 
for that mentioned by the presiding justice, and for the further reason that, as 
long as the first order remains unappealed from and unreversed, it cannot be 
assailed by this appeal from the order directing the punishment of the witness. 
By that order the witness was directed to answer, and he could not after that 
decline to do so as long as that remained in force.

Van Brunt, P. J.:
I concur. The witness could not raise the objection that the judgment-creditor 
had commenced proceedings to set aside the assignment. If that fact was a bar to 
this proceeding the judgment-debtor could only avail himself of it by a proper 
motion to dismiss the proceeding; witnesses are not accorded the privilege of 
putting in answers for defendants.

Order affirmed, with costs and disbursements.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

File at: http://files.usgwarchives.net/ny/newyork/court/sickle812gwl.txt
This file has been created by a form at http://www.genrecords.org/nyfiles/

File size: 12.0 Kb