22 N.Y.S. 701 | New York Court of Common Pleas | 1893
The only question presented by this appeal is whether the defendants can be punished for a contempt by reason of their disobedience of the order requiring them to return the deposit to the county clerk, which was affirmed on appeal. Cunningham v. Hatch, (Com. Pl. N. Y.) 18 N. Y. Supp. 458. The learned judge who presided at the special term, where the order appealed from was made, assumed that the practice governing the restitution of moneys obtained by means of a judgment or order, which is subsequently reversed or set aside, applied to the deposit in question; and he accordingly held that the latter was but money due upon an implied contract, and that, under the provisions of section. 16 of the Code of Civil Procedure, restitution thereof could not be compelled by proceedings to punish as for a contempt. The case of Forstman v. Schulting, 42 Hun, 643, is cited in support of this ruling. In that case an attorney received moneys under an erroneous order, which was subsequently reversed. He several times promised to repay them, but failed to do so. On a motion made to punish him for contempt, the court held that, where money has been received under an erroneous decision, the party receiving it is equitably bound to refund it, and the law will imply a promise on his part to pay it over, as it will ordinarily in cases where one person receives money belonging to or for the use of another, and that the remedy for the case was the issuance of an execution pursuant to section 779 of the Code of Civil Procedure. The case of O’Gara v. Kearney, 77 N. Y. 426, is also relied upon by the respondents to sustain the order appealed from. In that case the order was dismissed, with costs, which were voluntarily paid by the attorney. The judgment was afterwards set aside, and the defendant was directed to pay the costs to the plaintiff, and in default of payment he was adjudged guilty of a contempt. On appeal this was held to be unauthorized and void, and it was further held that the case came clearly under the provisions of section 1240 of the Code of Civil Procedure, which relates to the enforcement of a judgment by execution, and not under section 1241,- which prescribes in what cases a judgment may be enforced Jjy punishment for disobeying it; because the judgment directed payment of money to the party, and not to the court, or an officer of the court. These cases are distinguishable from the one before us. There the payment of money was directed after the rights of the parties had been finally adjudicated, while in the case at bar the defendants were required to return the deposit to the county clerk, to await the determination of the rights of the parties to the action. There is a wide distinction between an order requiring the payment of money to a party, and the return of a deposit to the officer who is the legal custodian thereof, which is recognized by section 1241 of the Code of Civil Procedure. The rule that the law implies a promise to repay moneys paid upon a judgment or order which has been reversed or ■ set aside is founded on justice and reason. It does not obtain, however, until the judgment or order has been reversed. Haebler v. Myers, 132 N. Y. 363, 30 N. E. Rep. 963. Applying these rules to this case, it is clear that a promise, either express or implied, cannot be inferred, for the reason that the return of the deposit was required before the rights of the parties interested therein had been deter
We have carefully considered the case of Haebler v. Myers, supra, and find nothing therein which in our opinion affects our determination of the question under consideration.
The order should therefore be reversed, with costs.
