9 A.D.2d 928 | N.Y. App. Div. | 1959
Appeal by judgment creditors from an order denying their motion to punish the judgment debtor for contempt by reason of his failure to make periodic payments pursuant to an outstanding order entered in proceedings supplementary to judgment. The learned Special Term held that the underlying judgment upon which the application was based must be deemed to have been discharged in bankruptcy, and any proceedings to enforce the judgment must therefore be deemed to have been abated. Order reversed, with $10 costs and disbursements, and motion remitted to the Special Term for further proceedings not inconsistent herewith. While appellants’ judgment concededly was obtained in an action in form esa contractu, sufficient appears on the face of the papers on appeal to indicate that their action was predicated on the theory of moneys had and received by respondent in his professional capacity as appellants’ attorney for investment in bonds and mortgages for their account. The complaint specifically alleged that respondent, contrary to his fiduciary obligations, misappropriated the funds entrusted to him and gave appellants nonexisting and spurious bonds and mortgages as ostensibly valid liens on properties. In our opinion, it is not the technical form of the judgment which is controlling on the question of its dischargeability in bank