Hoefler v. Hoefler

12 A.D. 84 | N.Y. App. Div. | 1896

Ward J.

Two questions arise upon this review : First. Was there sufficient evidence to go to the jury upon the question as to whether the defendant had notice of the order for alimony, and induced John 0. ILoefler, plaintiff’s husband, to leave the State and remain beyond its. jurisdiction to avoid the payment for support provided by the order.

Second. Conceding that the first proposition is answered in favor of the plaintiff, then was a cause of action created in favor of the plaintiff against the defendant to recover the damages sustained by the plaintiff in consequence of the defendant’s acts ?

In disposing of this case we must give the plaintiff the benefit of all the testimony given upon the trial, treating it as true, and of all inferences in her favor which may legitimately flow from such testimony.

We think the statement of the testimony above given solves the first question in favor of the plaintiff. There was sufficient evidence to go to the jury as to whether the defendant, with a view of defeating the plaintiff’s claim for the weekly allowance, had induced the plaintiff’s husband to leave the State to prevent any proceedings against him for the enforcement of the order directing the allowance,.and that she furnished him with means to accomplish that end.

The plaintiff’s counsel claims that the answer admits the allegation in the complaint, that the defendant did these acts knowing of the existence of - the order and of its terms. The distinct allegation of. her knowledge in this regard, in the complaint, is certainly not expressly denied, and the defendant does admit in her answer that at some time she had knowledge of the existence of that order. It is true the answer has the general statement that ■ it • denies every allegation in the complaint not before expressly admitted (a form, of pleading not to be commended), yet the defendant not having denied, specifically, this allegation, and the answer containing no general denial of the complaint, the defendant was called upon, when she admitted that at some time she had knowledge of the order, to deny specifically that she had such knowledge at the time of the husband’s departure from the State, if she intended to put the allegation in the complaint in issue. But, be that as it may, -the evidence we have quoted may indicate a knowledge of the'order; it was for the jury to. say. The use of the word “ alimony ” by the defendant is significant in this connection. There was evidence that the defendant was aware of the action for a separation.

The defendant’s counsel strenuously contends that the plaintiff has no remedy by action against the defendant; that it does not appear that the alleged tort of the defendant caused any damage whatever to the plaintiff, and if any damage did arise it was too remote, indefinite and contingent to be recovered, and he cites Lamb v. Stone (11 Pick. 527), where a Massachusetts court holds, in effect, that, where a defendant had fraudulently purchased the property of . a debtor, and had induced him to leave the State of his residence, a creditor of that debtor who had intended to attach the property of the debtor to secure his. debt, and who had intended to arrest the debtor, but had never carried his intention into execution, or procured any attachment against the debtor until the property was sold and he had left the State, had no cause of action, for the excellent reason, as the court says, that the creditor had obtained no lien upon the property by attachment. The claim of the. plaintiff consisted, simply, in an intention to effect the lien which was never consummated.

s

In the case at bar the husband was in contempt for violating an ■ absolute order of the court in the plaintiff’s favor requiring the husband to pay her money. There was no contingency about it. Hnder the statutes of this State the plaintiff was entitled to proceedings against the husband to compel its payment and to punish him for contempt. Of this right the plaintiff was deprived by the intermeddling of the defendant in placing the.husband beyond the jurisdiction of the court. The damage in this case (the loss of the alimony) was not remote or contingent. The grasp of the law was upon this husband and upon his property and earnings for the benefit of the wife, which the husband could not escape unless he was placed beyond the jurisdiction of the court so that its order could not be enforced against him, so that the direct consequence of the defendant’s acts was that she lost her support and the remedy to compel its payment. The damages were, therefore, the natural and legitimate result of the defendant’s acts.

In Porous Plaster Co. v. Seabury (43 Hun, 611) it appears that the plaintiff in the action had brought a prior action against the same defendants to establish a trade mark, in which it was successful and had obtained a permanent injunction enjoining the defendants from violating the trade mark. The action in that case was brought, among other things, against the defendants tq recover damages for a violation of this injunction which had accrued since the judgment in the first action. It was insisted there, as it is here, that the proper remedy of the aggrieved party was to institute proceedings to punish the defendant for a contempt where the damages sustained could have been included in a fine, but Judge Yak Brunt in a clear opinion, representing the General Term of the first department, held that notwithstanding the violation of the injunction order subjected the defendants to contempt proceedings, and they . might be proceeded against and fined and the damages collected in that way, there was nothing in the Code which restricts the plaintiff to this form of procedure, but it had a right of action for the damages.

; In Kings v. Barnes (113 N. Y. 476), where a final-judgment required the president and directors of a corporation -to transfer its stock upon the hooks of a corporation, and one Barnes, who was a defendant in the action, though not called upon personally to- perforin the act required, but who advised and aided the defendants, whose duty it was to transfer the stock, to disobey the judgment, and it appeared that Barnes was “ supporting them out of the jurisdiction when the fire of the courts became too hot for safety, or their orders could- be thwarted by that means,” and Barnes was fined and. imprisoned for contempt, Judge Finch (at p. 479), in referring to section 14 of the Code of Civil Procedure, the last clause of' subdivision 4, says: “The subdivision specifies certain acts of interference with the due aud orderly progress of an action or proceeding to its final and ultimate close, and then adds. generally a provision which covers any other interfence with it. So that any person who. interferes with the process or control or action of the court in'a pending litigation, unlawfully and without authority, is guilty of a civil contempt, if his act defeats, impairs, impedes or prejudices the right or remedy of a party to such action or proceeding.” '

Here is a clear intimation-that damages may arise from such an interference which the injured party is entitled to recover in contempt proceedings, and the case cited in Iiun holds, as we have seen, that such damages may be recovered by action.

The act of this defendant, complained of, certainly tended to defeat, iriipede or prejudice the right or remedy of the plaintiff in the action for a separation.

The defendant finally claims that no precedent can be found for this action.

This action would, under the old system, when actions had names, have been án action upon the case, which is said -to be a remedy adapted to every special invasion of one’s rights. (Millar v. Taylor, 4 Burr, 2345.)

And in ¡all cases where a man has a temporal loss or damage by tire wrong of - another he may have an action on the case to be repaid in damages. (Com. Dig. “Action on Case ;” County Commissioners v. Duckett, 20 Md. 468.)

To maintain an action on the case it is not- necessary t-hat it- should be supported by instances or precedent; it is sufficient if the case-, in question is covered by principle. (M'Farlane v. Moore, 1 Overton [Tenn.], 174.)

In Hurwitz v. Hurwitz et al. (30 N. Y. Supp. 208) the General Term of the New York City Court held that a judgment creditor might maintain an action at law against the judgment debtor and. another to recover damages for conspiring to prevent the collection, of the judgment by removing and disposing of such debtor’s property and placing it beyond the reach of execution.

In Michalson v. All (21 S. E. Rep. [S. C.] 323) it was held that where a person with the connivance of. the owner converts to his. own use farm products subject to an agricultural lien and placea them beyond the reach of the lienee under the statutory proceedings, the latter may, in an action similar to case,- at common law recover his damages.

We need not multiply cases to sustain the principle here contended for.

The plain tiff’s exceptions should be sustained and a new trial granted, with costs to abide event.

All concurred, except Adams, J., .not sitting.

Plaintiff’s exception sustained and a new trial ordered, with costs to abide the event.