Bradbury v. Bliss

48 N.Y.S. 912 | N.Y. App. Div. | 1897

Rumsey, J.:

.Judgment was recovered against the defendant in this action upon which an execution was issued, and when that execution had been returned unsatisfied, proceedings supplementary to it were begun. Those proceedings went so far that a receiver was appointed, who seems to have qualified, hut the order appointing the receiver did not contain any direction that the judgment debtor should deliver to the receiver the property in his possession. In that condition of affairs the receiver, on the 24th day of September, 1897, procured from a justice of this court an order requiring the judgment debtor to turn over forthwith to the receiver certain personal property, more particularly described in the order. There was contained in the order a direction that, in default thereof, the judgment debtor should show cause at the time and place stated in the order why he should not be adjudged guilty of contempt of court and punished accordingly. On the return day of the order to show cause the defendant appeared and opposed it, but it resulted in the order appealed from adjudging the defendant in contempt and imposing a fine of $300, and a commitment to the county jail until the same was paid. From that order this appeal is taken. In any case, before a person can be punished for a contempt in disobeying an order, he must have had notice of it and an opportunity to become acquainted with its ¡u'ovisions, and a demand must have been made upon him to do the thing which the order required of him. (McComb v. Weaver, 11 Hun, 271; Code Civ. Proc. § 2268.) The proceedings to punish for contempt must be taken as prescribed in the statute. They are strioti juris. (McComb v. Weaver, supra.) The statute requires that there should be served upon the accused before he shall be punished for contempt, either an order to show cause why such punishment should not be inflicted, or there should be issued a warrant of attachment to bring him before the court. (Code Civ. Proc. § 2269.) But whichever mode of procedure is adopted, it is necessary that certain facts shall be made to appear to the court. These facts are specified in section 2269 of the statute, and one of them is that the judge must be satisfied by affidavit of the commission of the offense. Until that has been done, no order to show cause can be issued. But the offense cannot be committed until the order directing the act to be done has been brought to the attention of the defendant and the demand has been made upon him that it shall be done; and he is not guilty of a contempt of court until after that demand has been refused or neglected. Ho such proof was made before the judge when this order to show cause was granted, and it could not be made, because at that time no demand had been made for the performance of the order to deliver the property and the. defendant- had not then refused . to-deliver it. The case, then, had not arasen in which the judge was authorized to make an order to show canse, and that order was irregular, and for that reason this motion should1 have been denied. The order to .show cause why a party ¡should not be punished for contempt can never he made until the¡ contempt has been committed. The order to show cause here was, therefore,: premature, and the order adjudging, the defendant in contempt should he reversed,, with ten dollars costs and disbursements, and the motion should be denied, with ten dollars costs.

Van Brunt, P. J., Barrett,, O’Brien and Ingraham, JJ., concurred.

Order reversed, with ten dollars, cdsts and disbursements,, and motion denied,, with ten dollars costs. 1