85 N.Y.S. 141 | N.Y. App. Div. | 1903
The respondent Kiernan, a defendant in this action, was, by an order of the Supreme Court in an action to sequestrate the property
There was no evidence that a demand had been made by the receiver upon these appellants for the payment of the moneys directed to be paid by the judgment. A certified copy of the judgment was served upon the appellants, but that service was not by the receiver personally, and no demand for the payment required by the judgment was then made. Section 2268 of the Code of Civil Procedure provides that when the court is satisfied that a personal demand for the payment of a sum of money required to be made by an order of the court has been made and that payment thereof has been refused, a warrant to commit may issue. Section 2269 provides that when the case is one mentioned in section 2268, the court may, in its discretion, make an order to show cause. The warrant or order to show cause must be based upon a personal demand. (Delanoy v. Delanoy, 19 App. Div. 295.) The appellants were directed to make these payments directly to the receiver. The judgment did not require that the appellants should pay the money at any particular time or place; and until the receiver by his demand upon the appellants for the money as directed by the judgment has placed the appellants in á position of refusing to .comply with the judgment, they are not guilty of contempt for which they should be punished.
The further question is presented as to whether this judgment could be enforced by proceedings as for a contempt, or whether it should be enforced by docketing the judgment as a money judgment and the issuance of execution thereon. Subdivision 3 of section 14 of the Code provides that a court of record has power to punish by fine or imprisonment “ a party to the action or special proceeding * * * for the non-payment of a sum of money ordered or adjudged by the court to be paid in a case where by law execution cannot be awarded for the collection of such sum.” Secs tion 1240 of the Code provides that a final judgment may be enforced by execution “.where it is for a sum of money in favor of either party, or directs the payment of a sum of money,” and
“ 1. Where the judgment is final, and cannot be enforced by execution, as prescribed in the last section. * * *
“ 4. Where the judgment requires the payment of money into court, or to an officer of the court, except where the money is due upon a contract, express or implied, or as damages for non-performance of a contract. In a case specified in this subdivision, if the judgment is final, it may be enforced as prescribed in this section, either simultaneously with or before dr after the issuing of an execution thereupon, as the court directs.”
An execution can be issued to enforce the final judgment in this action, and the judgment cannot be enforced by contempt proceedings unless it requires the payment of money into court, or to an officer of the court.
The respondent Kiernan is receiver of the property of a domestic Corporation, appointed in sequestration proceedings for the benefit of the judgment creditors at whose instance he had been appointed. By virtue of that appointment the property of the corporation was vested in him and he became the owner of the property, and as such he was entitled to its possession. He was made a party to this action as the person in. whom the property was vested by virtue of his appointment. The action was commenced to reach property belonging to the corporation in the hands of these applicants, and which, as to creditors of the cdmpany, was applicable to the payment of its debts, and it was in his favor in this capacity that the judgment directed that he be paid this money. While it may be said that this receiver is an officer of the court while engaged in collecting the assets of the corporation, this money is not recoverable by
Myers v. Becker (95 N. Y. 486) was an action by judgment creditors to set aside an assignment made for the benefit of creditors. In that action an interlocutory judgment was entered declaring the assignment void as to creditors and requiring the assignee to account for the value of the property which came into his hands, which was found to be $3,000, and appointing a receiver of the property of the assignors, and adjudging that from the proceeds of such property he should pay the costs and disbursements of the action. A referee was appointed before whom the assignee accounted, and upon the referee’s report an order was made which confirmed the report and Ordered the assignee to pay to the plaintiff the amount of the assigned estate in his hands, It was held that a final judgment could have been entered upon the report of the referee which Could have been enforced by execution, and that consequently a proceeding to enforce the order confirming the referee’s report by contempt was not justified. The provisions of the Revised Statutes were in force at that time, but they are not substantially different from the provisions of the Code. (See 2 R. S. 534, § 1 et seq.)
The case of Gildersleeve v. Lester (68 Hun, 532; affd., on opinion below, 139 N. Y. 608) is not in point. In that case, as appears by the report, on the appeal from the judgment (68 Hun, 532), the action
But in this action the money was not paid to an officer of the court appointed by the judgment here sought to be enforced, but was directed to be paid to the person in whom the legal title- of the property had vested by virtue of his appointment as receivér in another action. It was a final judgment which could be enforced by execution by which certain moneys for which the appellants were liable were directed to be paid to a party to the action for distribution among the creditors of the corporation, and such a judgment, we think, should be enforced by execution, and not by a proceeding for a contempt. .
It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion to punish the appellants for contempt denied, with ten dollars costs.
Yah Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ., concurred.
• Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.