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People ex rel. Keiley v. Speir

2 Abb. N. Cas. 466 Court N. Y. Supreme Court, General Term, First Department; English

Delivered by Daniels,J.

Contents

Majority

p. 466
PEOPLE ex rel. KEILEY v. SPEIR.
N. Y. Supreme Court, General Term, First Department;
October, 1877.
[Reversing Keiley v. Dusenbury, p. 360 of this vol.]

Headnote

Action on Contract.—Arrest Under Non-Imprisonment Act.— Equitable and Legal Actions.—Supplementary Proceedings.
"Arrest under the non-imprisonment act may be allowed as well in actions of an equitable as in those of a legal nature.
"A judgment in a creditor’s action or receiver’s action, against a fraudulent transferee of the debtor’s property, awarding the recovery of a sum of money from him on the ground that he had wrongfully received assets to that amount properly applicable to the creditor’s demand, constitutes a case of 1 ‘ money due upon a contract, . . . implied;” and a warrant of arrest may issue.
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Facts raising an implied assumpsit make a case within the act, although established in an equitable action.
The testimony of a debtor, taken upon his examination in supplementary proceedings, may be used as evidence of his fraud, to obtain a warrant of arrest under the non-imprisonment act. Proceedings under the non-imprisonment act are not criminal proceedings within the rule as to the privilege of a witness.
Certiorari.
Peter Morris and others, having recovered judgment against Selah Hiler, took proceedings supplementary to execution thereon, and examined the debtor under the Code of Procedure, and having procured William S. Keiley to be appointed receiver, Keiley, as receiver, brought an action in the H. Y. superior court, against Selah Hiler, Charles Dusenbury and others, to set aside an assignment which the debtor had made to Charles Dusenbury as fraudulent and void.
The receiver’s complaint alleged the recovery of judgment, and issue and return of execution, and the proceedings supplementary to execution in which plaintiff was appointed, but did not indicate the nature of the action in which the judgment was recovered; otherwise than by saying it was for a, sum named, “ damages and costs.”
The complaint also alleged, that among Hiler’s assets was a share in a fund in the hands of the city chamberlain, who was accordingly made a defendant; that Hiler obtained an order of court that it be paid over, but the creditors intervened with an order forbidding the payment, and that the fund was claimed by Dusenbury as Hiler’s assignee for benefit of creditors, and that Dusenbury obtained payment from the chamberlain to himself of the fund, by an order of court made on an application in which he did not disclose the fact that a receiver had been appointed against him.
The court before whom the cause was tried, as an equity cause, without a jury, found that these allega
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tions were sustained, and that the alleged assignment to Dusenbury was void, and the collection by him of the fund in question fraudulent as against the plaintiff ; that the receiver, by appointment, &c., became entitled to enough of the fund to pay the judgment; that the payment of the fund by the chamberlain exonerated him from further liability ; and that plaintiff was entitled to judgment against Dusenbury, for the amount of the judgment represented by the receiver, with interest and costs, &c.
The receiver took supplementary proceedings against Dusenbury upon this new judgment, and examined him under oath pursuant to section 292 of the Code of Procedure, as is more fully stated at p. 361 of this volume.
He then applied for a warrant of arrest bf Dusenbury under the non-imprisenment act.[2]
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Annexed to the affidavit were the supplementary proceeding’s containing’Dusenbury’s examination; also the judgment-roll in the receiver’s action.
On these papers a judge o£ the superior court issued the warrant of arrest under the non-imprisonment act, which he subsequently vacated on the objection that
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the examination in supplementary proceedings was not competent evidence on which to issue a warrant under that act against the person examined (reported at p. 360 of this volume).
The receiver caused the proceedings to be removed to the supreme court by certiorari.[2]
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D. M. Porter, for relator.
I. Certiorari is proper to review (King v. Kirby, 28 Barb. 49 ; People v. Daly, 4 Hun, 641 ; 5 Wait’s Pr. 461; Spencer v. Hilton, 10
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Wend. 608 , 610; Townsend v. Morrell, 10 Id. 578; People v. Reed, 5 Denio,. 554 ; Exp. Robinson, 21 Wend. 671 ;• People v. Recorder, 6 Hill, 429 ; Clark v. Gallagher, 20 How. Pr. 308 (307); In re Dodd, 27 N. Y. 632 ).
II. The judgment-roll, being a part of the evidence upon which the warrant was issued, cannot be controverted, but is conclusive (Krekeler v. Ritter, 62 N. Y. 372 ).
A warrant may issue in all cases prescribed by 3 R. S. (5th Ed.) 126, §§ 6, 8; Latham v. Westervelt, 26 Barb. 256 ; People v. O’Brien, 6 Abb. N. S. 63; Same v. Goodwin, 50 Barb. 562 .
III. The respondent erred in deciding that the supplementary proceedings could not be used in evidence in these proceedings. This is not a criminal proceeding (People v. Underwood, 16 Wend. 546 , 549; Goodwin v. Sharkey, 5 Abb. N. S. 64, 66 ; Berthelon v. Betts, 4 Hill, 577 , 581; Moak v. De Forrest, 5 Id. 605 ; Hall v. Kellogg, 2 Kernan, 325 ; Spear v. Wardell, 1
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Comst. 144); but a mere remedy to collect the debt (King v. Kirby, 28 Barb. 49 ; Wheaton v. Fay, 62 N. Y. 275 ).
If. Admitting the supplementary examination, it shows the same facts as to the property named in it as was shown in Wheaton v. Fay, supra, leaving the additional frauds fully established by other proof.
V. The court may correct the erroneous decision of the respondent (People v. Board of Police, 39 N. Y. 506 ; Morewood v. Hollister, 2 Selden, 309.
Hall & Blandy, for respondent.—I. The court had no jurisdiction to issue the warrant in the first instance, as the papers on which the application was made for the warrant clearly showed that this is not a case within the act of 1831.
II. The application for the warrant was based upon the examination of the defendant in supplementary proceedings, and the judgment-roll in the case. These were improperly used, and should not have been considered by the justice ; and if they are stricken from the case, then there is no proof before the court which would justify the issuing of the warrant (§ 292 of Code; Lathrop v. Clapp, 40 N. Y. 332 . See also Forbes v. Willard, 37 How. Pr. 193 ; People v. Underwood, 16 Wend. 546 ).
III. This is a criminal proceeding (Lynde v. Montgomery, 15 Wend. 461 ; Moak v. De Forrest, 5 Hill, 605 ; People ex rel. Latorre v. O’Brien, 3 Abb. Ct. App. Dec. 552 ; S.C., 6 Abb. N. S. 63). And the defendant, having been tried and acquitted, should not be placed in jeopardy again for the same offense (N. Y. Constitution, § 6, art. 1; Block v. People, 2 Parkers Crim. 676, and cases cited; People v. Goodwin, 18 Johns. 187 ; cited and approved, 24 N. Y. 82 ; Id. 101 ; 25 Id. 1421 ; 26 Id. 183 ).
IV. The act of 1831 should not be construed harshly towards the debtor. A liberal construction should be
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given to it, because it is a law in restraint of the personal liberty of the citizen, and the present policy of this State does not favor imprisonment for debt, and it. is an act which may easily become, in the hands of relentless creditors, an instrument of persecution and wrong (People v. Recorder of Albany, 6 Hill, 429 ).
Y. The court of its own motion should disregard the supplementary proceedings and judgment-roll, as the statutes prohibiting their admissibility are not a mere rule of evidence which a party can waive at his option, but they operate as an injunction upon the plaintiff, notwithstanding the failure to object to their admissibility.
YI. Even if the evidence contained in the supplemental examination was properly before the court, it is not contradicted, and on its face it shows that the transfers were made in good faith, and for a valuable consideration, and that the proceeds had been lawfully disbursed, and that the defendant had no property.

The judgment on which the proceedings were instituted was recovered in an action brought by the relator to determine the title to certain moneys received by Dusenbury from the chamberlain of the city of New York, and for the recovery of such moneys. These moneys were affected by conflicting claims, and one of the objects of the action was to secure a determination of those claims, and to establish the right of the plaintiff as receiver to the moneys. It was prosecuted in the form of an action in equity. The relief demanded by the complaint was entirely consistent with the case it presented; that was that the plaintiff should be adjudged entitled to, and to be invested with the property, estate, and credits of the judgment debtor ; that his preceding assignment should be adjudged fraudulent and void as to his creditors ; that the chamberlain should account to him for the

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debtor’s moneys in Ms hands, and that he should have judgment against the defendants for the moneys received by them. The relief awarded was substantially that which was demanded, the assignment was set aside as fraudulent, and a recovery was had in the relator’s favor, for the amount of the judgment debtor’s money in the hands of the defendant Dusenbury, and upon tMs judgment proceedings for its collection were taken against him under the provisions of the act abolishing imprisonment for debt. The complaint in the receiver’s action neither set forth in terms nor in any manner alluded to any contract existing between himself or the judgment debtor, and the defendant Dusenbury, either as a basis of the liability desired to be enforced and maintained, or otherwise. It was, on the contrary, an action to set aside an assignment made by the judgment debtor, and for an accounting concerning the moneys received by the respective defendants. The defendant, Dusenbury, had received such moneys, claiming to be entitled to them under the authority of the assignment. But it was held that he had no such right, and that the plaintiff as receiver should recover the money. By the provisions of the non-imprisonment- act a party can proceed against the debtor under it, when he has a demand upon which according to the preceding provisions, the debtor cannot be arrested or imprisoned (3 Rev. Stat. 5th Ed. 126, § 6). And the cases in which, by such preceding provisions, the debtor cannot be arrested or imprisoned, are those where the suit shall be brought “ for the recovery of any money due upon any judgment or decree founded upon contract, or due upon any contract express or implied, or for the recovery of any damages for the non-performance of any contract” (Id. § 1). The prohibition against arrest and imprisonment contained in this section was' not confined to what were understood to be actions at law for the re
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covery of moneys clue upon or for breach of a contract, but it also included actions in courts of equity. And where they were founded upon an express or implied contract, there the debtor, according to the express language of this section, could not be imprisoned upon any execution issuing upon the decree. It was not necessary, under these provisions of the statute, that a contract should be averred as the foundation of the plaintiff’s action, in order to exonerate the defendant from arrest and imprisonment. But it was sufficient for this purpose that this suit should be for the recovery of money, due upon contract, express or implied. And from the facts, imperfectly stated in the complaint as they were, it could readily be seen that an implied contract existed in law for the payment of the moneys received by the defendant Dusenbury to the receiver, in case he had no right to receive and hold them upon the ground claimed by him. As the facts turned out, the moneys were received by the defendant Dusenbury without right, and consequently for the use of the receiver. And the law, therefore, implied a promise against him to pay them over, as the judgment directed that it be done (Admr. of Dumond v. Carpenter, 3 Johns. 183 ; Buell v. Broughton, 2 Den. 91 ; Cobb v. Dows, 6 Seld. 335, 341). The action was not one in which the defendant could be imprisoned upon an execution, for the reason that it was an implied contract against him, and therefore he could be proceeded against under the non-imprisonment act. The action might have been prosecuted in a different form, but as it was not, that fact cannot affect the plaintiff’s right to maintain this proceeding.

No wrongful act was alleged as the foundation of the action, beyond the circumstances showing that the money had been procured without any actual right to it. And the judgment proceeded upon the same theory ; so far as it was recovered against Dusenbury. It was

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simply that the plaintiff recover against him personally, with costs, the snm adjudged to be in his hands. All conformed to the theory that the liability enforced was for money received by him, under the claim of authority to act under the assignment. He had no such authority, and when the assignment was set aside as fraudulent it followed that he must account for and pay over the money he had received. And the law implied a promise against him that he would do so.

[The court then examined the competency of the examination, and held as stated in the last two head-notes.]

For that reason the order made should be reversed, and further proceedings directed before the judge having cognizance of them.

Davis, P. J., and Beady, J., concurred.

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