77 N.Y.S. 610 | N.Y. App. Div. | 1902
On the 28th day of February, 1900, an order was entered in this, proceeding which recited the entry of an order appointing a, receiver of the property of Oliver W. Hall, a judgment debtor.; the entry of an order on the 10th day of February, 1899, directing the said receiver to pay over to the plaintiff, the judgment, creditor, the sum of $447.95 ; that these orders .have been vacated and set aside by an order entered on the 15th day of September, 1899; that the defendant had .moved for an order awarding him, restitution of the sum of $510.50, being the difference between the sum of $600, theretofore taken by the receiver in said proceedings, and the sum of $89.50 repaid by the receiver to the said Hall, and directing the said Edward J. Newell to-pay over to the said Hall, or his attorney, the sum of $510.50; and provided that after hear
It was held by the Court of Appeals in Harris v. Elliot (163 N. Y. 271) that where a final judgment simply directs the payment by one party to another of a sum of money, such final judgment is exclusively enforcible by execution and cannot be enforced by a proceeding under section' 14 of the Code. In this case, however, there is no judgment of any kind ; nor is the order directing the restitution a final order in the proceeding. It directs the restitution of a sum of money which had been paid by a receiver appointed by the court, to the plaintiff under an order which had been vacated. There is no dismissal of the proceeding or final determination of any question therein involved. The order is clearly interlocutory. It is claimed, however, that under section 779 of the Code of Civil Procedure such an order could be enforced by execution. This section provides that “ Where costs of a motion, or any other sum of money, directed by an order to be paid, are not paid within the time fixed for that purpose by the order * * * an execution against the personal property only of the party required to pay the same, may be issued by any party or person to whom the said costs or sum of money is made payable by said order.” This section, however, contains the following provision : “ But nothing -herein contained shall be so construed as to relieve a party or person from punishment as for contempt .of court for disobedience to an order in any cáse when the remedy of enforcement by such proceedings now exist.” The provision of this section must be read in connection with the provision of the Code regulating the proceedings to punish for a civil contempt. Section 2266 of the Code provides that the title applies to a case specified in section 14 of the Code, and section 2268 provides that “ Where the offence consists of a neglect or refusal to obey an order of -the court, requiring the payment of costs, or of a specified sum of money; and the court is satisfied, by proof, by affb davit, that a personal demand thereof has been made, and that payment thereof has been refused or neglected; it may issue without notice,, a warrant to commit the offender to prison,- until the costs or other sum of money, and the costs and expenses of the proceeding are paid, or until he is discharged according to-law; ” and the subsequent sections provide that a proceeding to punish for contempt may be
We think that the court below correctly entertained this proceeding; had power to punish the appellant for his contempt in'
Van Brunt, P. J., Patterson, Hatch and Laughlin, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.