Kernochan v. Russell, 34 Misc. 824

Kernochan v. Russell

34 Misc. 824 | City of New York Municipal Court | 1901

Lead Opinion

Fitzsimons, Ch. J.

The evidence submitted to us proves in our opinion that the defendant from 1880 to 1899 was the owner of the twenty shares of stock in question. In 1880 he deposited them as collateral security for a loan of $1,000, and they so remained until 1899, when said loan (which had meanwhile been sued upon and judgment thereon recovered), was compromised by defendant at fifty per cent, and was paid by him with his own check, and he received acquittance therefor and the return of his collateral. During the period mentioned he also received the dividends paid upon said stocks at the rate of five per cent, per annum.

The judgment herein was recovered in June, 1888, not being paid, the usual order for defendant’s examination in supplementary *825proceedings was issued in Hovember, 1891. He did not appear upon the return day, and in December, 1900, an order was obtained to punish him for contempt, and he, upon the return day of said order, was ordered to submit to examination. Upon such examination he claimed to have no property and swore that for the thirty years just passed he owned no property. He did not mention the shares of stock in question, which were then worth about $1,600. Ho mention thereof was made by him until after the examination of Mr. Baker as a witness in such proceedings, and who was the attorney for the judgment creditor in the $1,000 loan matter. Then the defendant for the first time claimed that in August, 1888, he made a present of them to his wife. They were then in the hands of the bank which in 1880 loaned; him the $1,000, and no notice of such transfer was ever sent to it. He also continued to personally receive the dividends thereon as before stated until 1899, when he paid said debt and received from the bank said twenty shares of stock. We are convinced after reading carefully the record presented to us, that the said alleged gift to his wife is a mere afterthought and subterfuge, intended to hinder and obstruct the collection of this judgment and if possible to prevent its satisfaction. We think he should be punished for disposing of his property contrary to the injunction order.

The order appealed from must be reversed with costs and disbursements of this appeal to appellants, and the judgment debtor is hereby adjudged guilty of contempt and fined the amount of the judgment herein. The judgment creditor may also' have any other relief that may be just and proper herein.

O’Dwyer, J., concurs.

Dissenting Opinion

Hascall, J.

(dissenting.) I dissent, deeming the Special Term right in its order, because title to the property was still in dispute.

Order reversed, with costs to appellants, and judgment debtor adjudged guilty of contempt and fined amount of judgment.