In re Duryea — 17 A.D. 540

Majority

p. 540

In the Matter of the Application of Charles R. Duryea, Assignee of Duryea, Watts and Company (Limited), a Judgment Creditor, for the Examination of Jacob Fishback, a Judgment Debtor. Ferdinand E. M. Bullowa, Respondent; Samuel T. Duffy, as Receiver of Jacob Fishback, Appellant.

Headnote

■Supplementary proceedings—a third party, examined as to money of the judgment debtor in his possession.—payment of it thereafterto the debtor’s wife —contempt.

An attorney, who, after the service of an injunction order restraining him from parting with the property of the judgment debtor, testifies as-a witness in proceedings supplementary to execution, that hé has in his possession a sum - to the credit of an action in which the judgment debtor was plaintiff, and which ■ is part of the recovery in that action, and thereafter pays that sum to the wife of the judgment debtor, who had .an assignment -thereof from the judgment debtor, before the judgment was entered in the action, is not guilty of a con-tempt of court.

■ Appeal by "Samuel T- Duffy, as receiver of Jacob Fishback, a .judgment debtor, from an. order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of -New York on the 16th day of March,; 1897, denying his motion to punish Ferdinand E. M. Bullowa for contempt of •court.

L. B. Bunnell, for the appellant.

Ferdinand E. M. Bullowa, respondent, in person.

On .the. 22d of January, .1891, an order of' a justice of the". Supreme Court was made, by which one Bullowa was required to -attend and submit to an examination as a third party alleged to have in his possession money or property of a judgment debtor. The order was returnable on the 25th day of January, 189T, and it ■contained an injunction against Bullowa, restraining him from parting with any property of the judgment debtor until the further' ■order of the court. ■ Mr. Bullowa attended, and upon liis examination swore that he then had a sum. of $285 to the credit of an ' ■action in which the .judgment debtor referred to was plaintiff, and which amount was part of the recovery in that action. Mr. Bullowa

p. 541

did not swear that the money belonged to the judgment debtor. Ho order was made after the examination of Bnllowa, except that in February, 1897, a receiver of the judgment debtor was appointed. He qualified on the twenty-third of February, and thereafter made a personal demand on Bullowa for the money above mentioned. That demand was not complied with. Before the demand was made> and on the 5th day of February, 1897, Bullowa had paid the $285 to one Blaut, who held a power of attorney from the judgment debtor and his wife, the judgment debtor having on June 9, 1896,. assigned his interest in the recovery, out of which the money arose, to his wife. The real question here is whether Bulloiva disregarded and disobeyed the order of January 22, 1897, and disposed of the money contrary to that order. It is plain that if the money were not that of the judgment debtor, there could have been no disobedience of the order, and it was incumbent upon the moving party here to show that the money which Bullowa paid over on the fifth of February belonged to the judgment debtor. It appears that this, money was received in payment of judgments recovered by the judgment debtor against a corporation, and that before these judgments, were entered, all of the interest and right of the judgment debtor therein was assigned to his wife. There was apparently, therefore,, a right and title in the wife to the money. Bullowa was the attorney who conducted the actions in which the recoveries were had. According to his showing, he did not, contrary to the restraint of the injunction, part with any money belonging to the judgment debtor. If the transfers from the judgment debtor to his wife were fraudulent and colorable, that matter cannot be tried in this proceeding. It was not shown that the money belonged to the judgment, debtor, or that the court could have made an order requiring the payment of the money to a receiver of the judgment debtor’s property ; and for the lack of such proof, the court below was right in denying the motion.to punish Bullowa for the alleged contempt of’ the order of January 22, 1897.

Order affirmed, with costs.

Van Brunt, P. J., Rumsey, Williams and Parker, JJ., concurred

Order affirmed, with ten dollars costs and disbursements.