National Wall Paper Co. v. Gerlach

15 Misc. 640 | City of New York Municipal Court | 1896

McCarthy, J.

An examination, of .the- testimony taken in these supplementary proceedings bears but one construction and leads but to one conclusion, that in transferring and pay-ing out the moneys testified to and in executing and-delivering the general assignment of his property by the defendant, after the service of - an order in supplementary proceedings-containing an injunction forbidding him from transferring or otherwise disposing of his property,, he- was ■ and is guilty of contempt, of court.

It was his voluntary. act, and the plaintiff, was injured hy the same, .since it had taken steps- by 'which it would have-procured a lien- on the estate, real and personal, of the judg- , meiit debtor. '

It matters not how slight that lien- might have been; the-judgment debtor could not assume- the 'power to judge and determine the. issue and thus viólate- a positive order- of the-court because, in his judgment, there- was- not enough to meet; the creditor’s claim.

He could hot be the .judge of tbisj. but must leave it to be determined by the Tegular and orderly proceedings.

The case of Canda v. Gollner, 73 Hun, 494, we think, is; directly in point. See 117 N. Y. 297 ; 130 id. 185, 186.

It is claimed, however, that there was no contempt, because in a similar proceeding on March 29,1894, in which Ellen M. B. Connolly was plaintiff, and this defendant was the defendant, a receiver was appointed, but it is declared and not contradicted that no bond had been filed in the office of the clerk of the city and county of Hew York as required by statute, and which requires that before he, the receiver, enters upon the execution of the trust “ he shall execute to the People of the State of Hew York a bond with sufficient sureties, to be approved by a justice of this court . * * and. file said bond with the clerh of the city <md comity of New ÍTorh, a/nd that such receiver, upon filing such bond, be i/mested with all the rights mid powers as recei/ver, according to law,, and the receiver’s appointment' is not,, therefore, complete until his bond is filed.”

The receiver’s title to real estate is at most a qualified title in the nature of a security for .the plaintiff in the judgment, and did not exhaust the title of the judgment debtor. Subject to the rights.'of the- receiver to resort to the land to pay the judgment, the title remains in the judgment debtor. Moore v. Duffy, 74 Hun, 78, 80.

The defendant was, therefore, guilty of contempt, and the order appealed from is reversed, with costs, and the proceeding remitted to the Special Term to fix the amount of' a fine sufficient to indemnify the plaintiff ■ for its loss and damage.

The Special Term justice may allow as an- item of expense á reasonable fee to the plaintiff’s attorney in these proceedings. People ex rel. Garbutt v. Rochester State Line R. R. Co., 76 N. Y. 294, 301.

Yah Wyck, Oh. J., and Scotchman-, J., concur.

Order reversed, with costs, and proceeding remitted to Special Term, to fix amount of fine.