105 N.Y.S. 120 | N.Y. App. Div. | 1907
The plaintiff appeals from an order denying his motion that Lydia A. Hodge and one Granville Whittlesey, an attorney of this court, be required to bring within the State of New York and within the jurisdiction of this court 42,000 shares of the capital stock of the Hevada-Htah Hines and Smelters Corporation upon which levy was. made in this action by the sheriff of the county of New York, and that in case of the failure or refusal of said Whittlesey to bring the said certificate of stock within the State of New York, and within the jurisdiction of the court in such manner as may be prescribed by the court, that the said Whittlesey be punished as for a contempt of this court. There is no proof of the service of .the order to show cause on Whittlesey, but the order denying the motion recites that it. was' made upon motion of the attorneys for Whittlesey, and he made an affidavit which was read in opposition to the motion, so that he appears to have had full knowledge of the motion and to have participated in it, but as he has.failed to appear •or file a brief upon this appeal, we must conclude that he is singularly oblivious of the serious offense of which he has been guilty towards the court, and towards his own duty as one of its attorneys or is indifferent with respect thereto. His offense consists of actively participating in taking out of the State, and beyond the jurisdiction of this court, property held here in custodia, legis under an attachment issued out of this court, the levy of which the court had expressly refused to vacate. It appears from the papers presented to the court that in February, 1906, the plaintiff, Adolph S. Lowenthal, commenced an action in this court against- one Charles J. Hodge, a non-resident of this State, and in that action sued out a writ of attachment. • Hodge, at that time, was the owner of 42,000 shares of the capital stock of the Hevada-Utah Hines and Smelters Corporation, which were held by one John Weir, the president of the corporation under what is called in the papers an “escrow” agreement, but which appears to have been a sort of pooling agreement between a number of holders of the stock, including Hodge, that their stock should remain on deposit with Weir until January 1, 1907, in order to guard against an attempt by any one of them to forestall1 his associates by throwing the stock on the market. The
Thereupon the present motion was made, in response to which the said Whittlesey made an affidavit under date of March twenty-second in which he stated that “the said John Weir, who now is and for'some weeks past has been in California, before leaving New York gave and since his departure from New York has given deponent.as his attorney instructions to take said stock- from the depository with which said Weir caused the same to be deposited in his, the said Weir’s name, if, when and as said Weir might give deponent as his attorney specific instructions so to do for him and on his behalf. That said stock was not deposited by said Weir without the State of New York for the purpose of affecting any rights of the -plaintiff under the claimed levy of attachment referred to in plaintiff’s affidavit, but to avoid the said Weir from being harassed or prevented by suits or proceedings which might hamper or prevent said Weir from carrying out the purposes for which said stock had been placed in his custody, possession -and under his control in escrow.” This affidavit is regrettably lacking in that frankness which the court is entitled to expect from an attorney charged with participation in an attempt to defeat its process, but we can clearly deduce from it that while the stock was, to his knowledge, under levy of an attachment, which the court had refused to discharge, this attorney, knowing the facts, had taken, or .assisted in taking, the stock without the State and berond the jurisdiction of the court. A writ of attachment is a “ mandate ” of the court (Code Civ. Proc. § 3343, subd. 2), and also falls within the definition of an “ order.” (Id. § 767.) The sheriff to whom the attachment is directed is an officer of the court, charged with the duty of enforcing the mandate of the court, and property levied'upon by him by authority of such a mandate becomes while in his possession in-the possession of the court, and ,it has always been held that interference with the possession of an officer
' “6 The ¡lower to punish for contempts is inherent.in all courts; its existence is essential to the preservation of order in judicial proceedings and to the enforcement of the judgments, orders. and writs of the courts, and' consequently to the due administration of justice.’ * ■ * '* The purpose of. contempt proceedings is to uphold the power of the court and also to secure to suitors therein-the rights by it awarded'.”' (Bessette v. Conkey Co., 194 U. S. 324, quoting from Ex parte Robinson, 19 Wall. 510.) As was said, by the. Court of Appeals: “ 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 tlie right or remedy of a party to such-action or proceeding.” (King v. Barnes, 113 N. Y. 479.) And to the same effect' is section 14 of the Code of Civil Procedure. - '
That the act of taking the attached pnoperty out of the jurisdiction was calculated to defeat and prejudice the plaintiff’s remedy is obvious, for under section 707 of" the Code of .Civil Procedure the judgment which the plaintiff.lias obtained, being founded upon substituted service and without an appearance by the defend? ' ant, can be Satisfied only but of the attached propeVty. That the attorney was not the party upon whom the’ attachment was served is of no consequence. It is sufficient that, knowing the facts, he - participated in removing the attached property, and his conduct in '
The only difference between that case and the present is that there the person holding the certificates of stock had advanced money upon them as security. This as we consider does not affect the principle underlying that decision. An attachment is merely a possessory process, and if the person holding the attached property so holds it by a right or title, which would justify its retention from the owner, it will, generally, be sufficient to justify a refusal to make actual delivery to the sheriff, and the agreement under which Weir" held the stock would, as it appears, have justified his withholding the stock from the real owner until January 1, 1907, the consideration for Hodge’s agreement that it should be held until
It follows tljat.tlie order should be modified so as to direct Gran-ville Whittlesey to return the 42,000 shares of stock referred to in the order appealed from to this State and within tlie jurisdiction of the court within fifteen days after service of the modified order ■upon him, and since the so-called escrow period has elapsed, lie should be required to deliver the said stock into the custody of the sheriff. If lie should refuse or neglect to do so, the plaintiff will be at liberty to make such further motion' as lie may be advised. So', far as Lydia A. Hodge is concerned, the papers fail to connect her with tlie removal of the property, and the motion was .properly denied as to her. The order wilL.be modified as above indicated, ancf as modified affirmed, with ten dollars costs and disbursements to the appellant, to be paid by the respondent Whittlesey personally,
Ingeaham, McLaughlin, Laugiilin and Claeke, JJ., concurred.
Order modified as directed in opinion, and as modified affirmed, with ten dollars costs and disbursements to. appellant, to be paid by the respondent Whittlesey personally.