Eckert v. Truman, 148 N.Y.S. 48

Eckert v. Truman

148 N.Y.S. 48 | N.Y. App. Div. | 1914

Per Curiam:

After the plaintiff had recovered a judgment annulling a conveyance made to this defendant, and for the costs of the suit, she brought a second action on July 7, 1913, for conversion of a stock certificate of 100 shares of “ Castle Edward,” Lake Hopatcong, N. J.

In the supplementary proceedings upon the judgment foi costs, defendant disclosed that she had this stock, whereupon a receiver was appointed on October thirtieth, who qualified on November first and served notice of his appointment on November fifteenth. The court orders for opening a safe deposit box failed, however, to reach the stock.

The action for conversion came on for trial on November twenty-first. This stock certificate was in evidence, and with other exhibits went into the jury room. When with the ver*19diet in favor of plaintiff tins certificate was returned to the court, the receiver asked that it be delivered to him. Defendant’s counsel declined, and the trial justice remarked that plaintiff, having a money judgment for its value, could not at the same time take away the stock, and directed the clerk to hand the certificate to defendant’s attorney, who the following day gave it to the defendant. Upon affidavits showing the above facts, an order to show cause was made returnable December third why the judgment debtor and her attorney should not surrender this stock certificate or stand in contempt. The order, however, contained no injunction clause. Defendant in the meantime had disposed of the stock to her son, Herbert P. Truman, who asserted that he became the buyer of the stock and had paid cash therefor. The learned justice at Special Term ordered the debtor, Mrs. Truman, and her attorney to hand over the stock to the receiver, and, upon failure to obey, that they be each adjudged in contempt. This order was dated December eleventh and filed December twelfth. Defendant’s subsequent motion for resettlement was denied by order of December twenty-ninth. A further motion was made to vacate the order of December twenty-ninth or to correct its recitals, which was denied by order of January 6, 1914. Defendant appealed from the order of January sixth and in her notice states that she intends thereby to review the prior orders of December eleventh and twenty-ninth.

Previous orders may be reviewed under a subsequent notice of appeal, but it is only when such notice of appeal is from a final judgment or from a final order in a special proceeding. (Code Civ. Proc. § 1301; Arkenburgh v. Arkenburgh, 14 App. Div. 367.) However, under Code of Civil Procedure (§ 723) we may treat this inartificial notice as appealing from the two prior orders, since it was served within thirty days from the earliest order, entered December 12, 1913.

Plaintiff’s right to this stock is complicated by her judgment in the action of trover. Such judgment, if satisfied, passes title, but entry of judgment without satisfaction did not change title. (Thayer v. Manley, 73 N. Y. 307, 309; 38 Cyc. 2112.) Still the act of suing for conversion did change plaintiff’s position. By bringing suit in this form, plaintiff waived the right *20to require from defendant the delivery of the certificate, and her election instead was to hold defendant responsible for its value as for a conversion. (Kelly v. Forty-second Street R. Co., 37 App. Div. 500, 505.) While the trial justice’s remark did not purport to adjudicate the title and was a direction only as to the clerk’s disposition of exhibits, it was a correct statement as to the right of possession of the stock certificate at that time before entry of judgment.

If defendant’s delivery of this stock certificate to her son was colorable so as to put it beyond plaintiff’s reach, still the court at Special Term had not the summary power upon motion to order the debtor and her attorney to deliver it to the judgment creditor. (Kenney v. South Shore Natural Gas & Fuel Co., 201 N. Y. 89; Shea v. Lynskey, 133 N. Y. Supp. 477.)

While the defendant may be charged with her attorney’s knowledge that an order had been made appointing a receiver, yet the" terms of that receivership order were ineffective if defendant was not restrained from disposal of the property. (Morris v. First Nat. Bank of New York, 68 N. Y. 362.) It is urged that the appointment of the receiver being known to defendant, whose attorney had also received notice of the filing of the receiver’s bond, the receiver’s official right to all the debtor’s property (including this stock) became vested, so that without any injunction clause this making away of the stock was punishable as a contempt. But the difficulty is that the defendant was not forbidden to dispose of the stock, which, after a judgment for its value, was not under any possessory right of plaintiff. A litigant with the attorney cannot be adjudged in contempt and subject to the penalty of fine or imprisonment without a proper foundation. Here was an attempt by means of the common-law remedy for conversion to reach a chose in action when plaintiff apparently had an equitable remedy by which she might have stopped the defendant from passing off the stock, and eventually have procured its surrender to the rightful owner.

The order dated December 11, 1913, must be reversed, with ten dollars costs and disbursements, and motion to punish for contempt denied, without costs, and without prejudice to further proceedings to reach the stock in question. This also disposes *21of the orders of December 29, 1913, and January 6, 1914, which will stand reversed, without costs.

Jenks, P. J., Carr, Rich and Putnam, JJ., concurred; Thomas, J., not voting.

Order of December 11, 1913, reversed, with ten dollars costs and disbursements, and motion to punish for contempt denied, without costs, and without prejudice to further proceedings to reach the stock in question. This also disposes of the orders of December 29, 1913, and January 6, 1914, which will stand reversed, without costs.