Ackroyd v. Ackroyd — 2 Abb. Pr. 380

Majority

p. 380

ACKROYD against ACKROYD.

Supreme Court, First District ; General Term,

June, 1866.

Headnote

Appeal.—Attachment foe Contempt.

An appeal does not lie to the court at general term, from an order made at special term denying a motion for an attachment for disobeying an order of the court, where, under the circumstances of the case, the granting of the attachment was discretionary with the judge below.

Where a defendant, on being required to produce his books and vouchers, and to render an account, produced certain-account-books and vouchers, but declined to render any further or other account, and the plaintiff obtained a general order to show cause why he should not be attached for contempt in not'producing the required account,—Held, that an order denying the attachment was not appealable.

It seems, that the application for an attachment is properly denied in such a case, and that the plaintiff, to enforce his demand to the account, should move for an order instructing the defendant that he had not complied with the requirement, and directing him to render a further account.

Appeal from an order denying a motion to issue an attachment against a defendant, for not furnishing an account.

This action, which was brought by Jonathan against Edmund Ackroyd, was for the purpose of settling the affairs of a partnership, and to have an accounting from the defendant, and payment of whatever might be found due.

The cause having been referred to a referee, and the referee having reported, among oth'er things, that the plaintiff was entitled to a judgment for the accounting of the matters alleged in the complaint, and that it should be referred to take and

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state an account; a reference was ordered for the purpose of such an accounting, and the order of reference required the defendant to produce before, and leave with the referee under oath, all the books and vouchers of the partnership, andrender an account, under oath, of all the goods, property, effects and credits of the partnership, and submit to an examination before the referee in reference thereto.

The plaintiff subsequently applied to the court at special term, for an order to show cause why defendant should not be punished for contempt. He produced affidavits stating that the books produced by the defendant upon the accounting, were not sufficient to state a perfect account, and that it was in the power of the defendant to bring in a more full account. He also produced a certificate of the referee, stating, among other things, as follows : “ I further certify that on the second day of April, 1866, the defendant’s counsel left with me sundry account-books and vouchers, accompanied by the defendant’s affidavit, a copy of which is hereto annexed, marked Schedule A ; that he has not deposited or left with me any further or other papers ; on the third day of April, instant, at two o’clock P. H., the plaintiff and defendant, and their respective counsels, attended before me, and the plaintiff required the defendant to render an account, as directed by that part of the order of-reference, which orders the defendant to render an account under oath of all the goods, property, effects and credits of said partnership ; this the defendant by his counsel declined to do, alleging that the deposit of the books and vouchers 'above mentioned was a compliance with that part of the order of reference requiring the defendant to render an account. The plaintiff’s counsel then requested me to give a certificate that defendant had not rendered the account required by the said order of reference, and I accordingly certify that the defendant has not rendered the required account, but declined and refused to render the same.”

Upon these papers the plaintiff obtained an order requiring the defendant to show cause why an attachment should not issue against him for his contempt in not furnishing the account required.

In opposition to the motion, the defendant produced his own

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affidavit, alleging that the books produced by him and left with the referee contained a full and complete account of all the business transactions in question; that they were the only books ever kept, except the cash book and banker’s book, neither of which were in the possession nor under the control of the defendant; that the account and books left with the referee were prepared and left under advice of counsel, and that it was not in the power of the defendant to render a more full and perfect account than he had rendered.

The motion was heard at special term in May, 1866, before Baemaed, J., and denied, with costs.

From this order the plaintiff now appealed.

Charles E. Miller, for the respondent.

I. The order made was entirely in the discretion of the court, and the appeal should be dismissed (Abbey v. Abbey, 6 How. Pr., 340 , note; Joyce v. Holbrook, 7 Abb. Pr., 338 .

II. The order should be sustained upon the merits. The court will not adjudge defendant in contempt for not doing an impossibility, nor for omitting what it is not in his power to do (Myers v. Trimble, 3 E. D. Smith, 607; Quintard v. Secor, Id., 620). Any uncertainty as to the fact of disobedience enures to defendant’s benefit, for the reason that he should not be punished as for a contempt, unless the affidavits show beyond a doubt that he disobeyed the order (Potter-u.’Low, 16 How. Pr., 549 ). The power of the court'to punish should not be exercised, unless the acts constituting the alleged contempt are clearly proved, and constitute a positive violation of the plain terms of the process or order (Weeks v. Smith, 3 Abb. Pr., 211 .

III. Plaintiff, if dissatisfied with the account, should have moved for a further account. If either of the parties is not satisfied with the account brought in, he may exhibit interrogatories to be settled by the master for the examination of .the accounting party, touching such points wherein the accounts are -deemed to be inaccurate or insufficient (1 Barb. Ch. Pr., 507). The appellate court will not reverse decision of question of

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fact upon conflicting affidavits, unless satisfied that the judgment is clearly wrong (Chaine v. Wilson, 1 Bosw., 673 ).

William Tracy, for the appellant.

I. The account required by the order of reference is the ordinary debtor and creditor account, provided by- rule 107 of the court of chancery (Chancery Ru les, 1839, p. 83; Story v. Brown, 4 Paige, 112; Ketchum v. Clark, 22 Barb., 319 ; 1 Laws of 1847, 344, § 77; 3 Rev. Stat, 201, § 49; Palmer v. Palmer, 13 How. Pr., 363 ; Code, §§ 461, 469. The account should be in the form indicated by the rules of 1839, p. 170 ; not the mere production of a ledger, leaving the referee to make what he can of it.

II. It is alleged, and it is not denied, that the defendant is familiar with book-keeping, and perfectly competent to state an account. It was adj udged that he had received all the property of the partnership under the agreement of 1856, and it is alleged in plaintiff’s affidavit, and not denied, that besides the other property, he had handed to defendant, in December, 1856, securities, all of which he believed had been paid, to the amount of fifty-five thousand four hundred and forty-seven dollars, and forty-eight cents, and this is not denied; and that plaintiff can find no entries in the blotter, journal and ledger, of a date later than October 31, 1856, and this is not denied. With these facts, the pretence that he is unable to state an account is palpably untrue. If he cannot, from those books, who can ? Can the referee ?

III. The court will the certificate of the referee, verified by the affidavits, and not contradicted, that the defendant has contumaciously refused to obey the order of the court. And the whole case shows a determination by the defendant to resist its orders. Under such a state of facts, an attachment should issue (Hoffman's Pr., 9, 1C; 2 Rev. Stat., 278, § 10 [5th ed., vol. III., p. 469, § 8]).

I do not say that in no supposable case, or under no supposable circumstances, an order denying a motion for an attachment for disobeying an order of the court, is or would be appealable ; but in my opinion in this

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case, and under the circumstances shown by the papers, the granting or not granting the attachment was entirely in the discretion of the judge, and the appeal should be dismissed, upon the ground that the order denying the motion for attachment was not appealable.

Though the judge may have thought that the defendant had not in fact complied with the direction in the order of reference as to the production of books and papers, and rendering the account, or an account, yet it certainly did not follow of course that an attachment should be granted.

On the motion for the attachment the question was whether the defendant had intentionally or inexcusably disobeyed or refused to comply with the order as to the production of the books, and the rendering of the account, or of an account.

If on that motion, or on a motion made specifically for the purpose, the court had instructed the defendant that he had not complied with the order as to the production of books and the rendering of an account, and had made an order directing the defendant to render an account, so far as he could from the books, which he did, or had it in his power to produce, and a motion had been made for an attachment, on the ground that the defendant had not rendered, or attempted to make out and render, any account, the question of appealability, and on the merits, would have been quite different.

I think the appeal should be dismissed, with costs.

Clerke, and Geo. G. Barnard, JJ., concurred.