57 N.Y.S. 663 | N.Y. App. Div. | 1899
By this application the plaintiff seeks to punish the defendant as-for a contempt in failing to pay over moneys to the treasurer of the county of Kings directed to be -paid by an order of restitution granted by this court in reversing a judgment in the defendant’s favor. The action was brought to recover a sum of money which the plaintiff claimed was held by the defendant in trust for him. The money was deposited in the defendant’s name by virtue of an agreement between the parties under which the plaintiff claimed the right to control and use the same. The defendant having
The depositary of the moneys, having been made a party to the action, set up that it was a mere custodian of the funds, and asked to-be permitted to deposit the same to the credit of the action, and to be discharged from further liability on account thereof. This order having been made, the moneys were so deposited, and.thereupon became a fund in the bands of the court to await final determination of the action.
Upon the trial of the action the defendant obtained judgment in her favoi-, and thereupon served upon the depositary a copy of the judgment entered, and demanded of it the funds in its hands, and the same were thereupon delivered to the defendant. Upon appeal such, judgment was reversed, and an order of restitution directed to issue. Upon the entry, and service of a copy of this order ¡upon the defendant she failed to comply therewith, claiming that she was not then in possession of the money, or its equivalent in personal property. Thereupon this motion was made to punish the party as and for a contempt for failure to. obey the order of restitution, and, by way of penalty, the court was asked to strike out the defendant’s answer. It may be assumed that the court has the power to fix such penalty as punishment for such disobedience, if the failure to obey the order constitutes a contempt. (Walker v. Walker, 82 N. Y. 260; Hovey v. Elliott, 145 id. 126.)
The question, however, presented by this appeal lies back of the penalty which may be inflicted for a contempt, and such question is, does the failure to obey the order directing restitution constitute the same a contempt of court, and does the party become .entitled to such remedy? H the order of restitution is to he treated as a final judgment, then it is quite- clear that the plaintiff’s remedy is by execution, and proceedings to punish, as and for a contempt will not lie. (Meyers v. Beaker, 29 Hun, 567; affd. on appeal, 95 N. Y. 486; Geery v. Geery, 63 id. 252; Matter of Hess, 48 Hun, 586.) But it is evident that it is in no sense'to be regarded as .a final judgment; it does not assume to determine the rights of the parties in the action, and, so far as restitution' is directed, it is. a mere interlocutory order, having for its object the preservation of the' fund, so
It is claimed by the defendant in the present case that if this order partakes of the character of a final judgment, then it is to be enforced by execution, as provided by section 1240 of the Code of Civil Procedure; and, if it be treated as an order, then it falls within the provisions of section 779 of the Code, which also provides a remedy for its enforcement by execution, and that in no view can it be said to fall within the provisions of section 1241 of the Code for the reason that the money was originally received by the defendant by virtue of an express contract, and that, by virtue of subdivision 4 of the last section, proceedings for contempt may not be taken in such a case.
We think there are several answers to these respective claims. Disposing of them in the inverse order of their statement, we find the first answer to be that the defendant did not obtain this money and does not now hold it by virtue of the provisions of the contract between herself and the plaintiff for the reason that her present custody of the money is by virtue of the judgment obtained in her favor, which apparently established her right to the money. The money had ceased' to be held either by the plaintiff or by the depositary as her agent when the same was paid into court by virtue of the order, which authorized the depositary so to do. It then became a fund in the hands of the court, to be held by it for the purpose of delivery to the party who should finally establish right thereto. Consequently, neither party could then obtain possession of this money by virtue of any contract relation, but could only receive it by virtue of an order of the court. So that the defendant is in possession of this money at the present time solely by virtue of the authority derived from the judgment, and, consequently, at the time when she received it, it was not by virtue of a contract, express or
When the court took possession of this fund- it did so for the sole purpose of having the subject of the action under its control for delivery upon the final determination of the rights of the; parties. That time.has not yet arrived, and the defendant having received from the court the funds in its custody, and being now without right or authority to hold them by virtue of any order of the court, her possession becomes the possession of the court, and she becomes in respect of such fund subject to any legal order which the court may make with respect to its disposition. This is the sole authority under which she holds; consequently, it is clear that she -cannot resist the order of the court directing her to pay the money into its custody based upon any right under which she originally received; such money.
We come, therefore, to the question, is an execution authorized by virtue of the provisions of section. 779? It reads: ‘‘‘ Where' costs of a motion, or any other sum of money, directed by an order to be paid, are not paid within the time fixed for that purpose by the order, * * * an execution against the personal property .only of the party required to pay the same may be issued by any party or person to whom the said costs or - sum of money is made payable by said order. * * * But nothing herein contained shall be so construed as to- relieve a party or person from punishment as for contempt of court for- disobedience to an order in any case when the remedy of enforcement by such proceedings now exist.” It is noticeable that the provisions of this section relate to payment of money to a party or other person to-whom the order requires it to be paid. This order of restitution - does not direct the payment of the money to any person or party true, it directs the payment to the county treasurer of Bungsnounty,. but such officer is neither a party nor a person within the meaning-of this section of the Code; for the purpose of this order such officer is the court, for' when the money is paid to him it is- within the custody of the court; consequently, such provision of the Code-does not embrace such custodian within its terms, neither; does, it assume to affect or change any remedy which existed at the'time of
From what- has preceded, it would seem to follow that section 779 of the Code does not furnish in any event the exclusive rethedy for • the enforcement of such an-order as we are now considering; nor is there anything found in chapter 300 of the Laws of 1831, abolishing imprisonment for debt, and the subsequent amendments; thereto, which in anywise militates against the continued existence of the power to punish as for a civil contempt a failure to obey the lawful mandates of the court, except so far as the remedy is made exclu-. sive by execution, which, as we have seen, does not apply to this case. Such practice was expressly continued by virtue of r chapter 128, Laws of 1832, and the substance of these laws has been made a part of the present Code in varying form. (Dusenberry v. Woodward, 1 Abb. Pr. 443.) It is quite possible that a remedy exists to enforce the interlocutory judgment by process of execution or by action, but these remedies are not exclusive, they are additional to the common-law remedies which have been preserved by our present system of practice and do not destroy the remedy by precept of commitment of the infliction of other proper'penalties for failure to obey such mandate as has been issued in this case. (Haebler v. Myers, 132 N. Y. 363; Cunningham v. Hatch, 3 Misc. Rep. 101; Kieley v. Cent. Complete Combustion Mfg. Co., 13 id. 85.)
But aside.from these considerations, we are of' opinion that the case also falls within subdivision 4 of section 1241 of the Code of Civil Procedure. While in a sense, as we have seen, the order of restitution is not a judgment, yet the judgment rendered by the court was of reversal, and upon such determination the party becomes entitled to enter a judgment and make as a part thereof the order directing restitution of the money. Such judgment is not final, because it does not determine the rights of the ¡parties. It is interlocutory, and is within the meaning, as we- think, of the judgments mentioned.in this section of the Code. (Marvin v. B.
Our conclusion, therefore, is that disobedience of this order constitutes a civil contempt, and that the remedy for its enforcement may be by precept of commitment as for a contempt.
It does not necessarily follow, however, from this conclusion, that
It follows that the order should be reversed and the case remitted to the Special Term for disposition, without prejudice to the right óf the defendant to make proof respecting her ability to comply with the order.
All concurred.
Order reversed, with ten dollars costs and disbursements to the . appellant, and application remitted to the Special Term for further hearing. ' ;