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