123 N.Y.S. 371 | N.Y. App. Div. | 1910
On November 17, 1908, defendant was served with an order requiring him to attend on November twenty-first before a justice of the Supreme Court and be examined in proceedings supplementary to execution. The order forbade him “to transfer or make any disposition of any property belonging to him or in wJiicJi he has any interest (except property exempt by law), or in any manner to interfere therewith, until further order in the premises.” He failed to appear for examination, but by stipulation the default was waived and he was examined on the. 12th day of June, 1909, and again on the twenty-fifth of the same month. Thereafter a motion was made to punish him ■ for contempt for violating the injunction order, and from the order denying such motion this-appeal is taken.
When the order was served defendant was employed by Hayden, Stone & Co. This employment began September 15, 1908. In the first instance, it was agreed that he should-receive as compensation .for his services commissions amounting to one-th'ird of the profits resulting to Hayden, Stone & Co. from the business in “ cotton futures ” obtained for them by him. About the middle of October, 1908, the agreement was modified so that said firm were to pay him a salary at the rate of $400 per month from September fifteenth, and in addition thereto he was to be permitted to “ draw up all there was in the past.” In pursuance of this modified agreement he received $400 on November eighteenth, $400 on December first, arid $3,800 on December seventeenth of the same year, all of which he immediately paid over to his wife at a time when the injunction order was in full force and effect. If we deduct from the $4,600 which he received the sum of $400 for salary claimed to be due October fifteenth and the sum of $400 for salary on November
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to punish for contempt should'be granted, with ten dollars costs, and the proceeding should be remitted to the Special Term to fix the appropriate punishment therefor.
Woodward, Jenks, Thomas and.Carr, JJ., concurred.
Order reversed, with ten dollars costs- and disbursements, motion to punish for contempt granted,' with ten dollars costs, and proceedings remitted to the Special Term to fix the appropriate punishment therefor.
Revised into Judiciary Law (Consol. Laws, chap. 30; Laws of 1909, chap. 35), § 753.—[Rep.