Duffus v. Cole

The inj unction order in this case forbade the defendant

from making or suffering any transfer or other disposition of or interference with her property, or in which she had' any interest, legal or equitable, not exempt from execution. The alleged contempt was that the defendant effected a substitution of one mortgage for another upon property on which she had previously given a mortgage. The diamond ring was held by the first mortgagee under and by virtue of a paroi mortgage. After the order was sérved, the first mortgagee told the appellant that she must get some one to take the property off his hands. She secured Jenkins to do this. He took a new mortgage for a less sum than the old one. She in no way disposed of any interest or equity she had in the property. What she did may possibly have constituted a technical interference with her property, but there was no real interference. Suppose she had procured Jenkins to take an assignment of the Tvier mortgage, surely that could not have been regarded as an interference with her property. It seems to us that that was all that was in effect done. She in no way lessened or interfered with or disposed of any interest she had in it. In Beard v. Snook, 47 Hun, 158 , we held that to support a conviction for contempt of an injunction in supplementary proceedings the legal title to the property transferred must be shown to be in the accused. Here the legal title to the interest transferred to Jenkins was riot in the defendant. It was in Tyler, and passed immediately to Jenkins. If, however, it can be said that it rested in the defendant for a point of time, still the interest which she transferred was acquired subsequent to the time when the- order was served, and therefore the injunction did not apply to such subsequently acquired interest. Potter v. Low, 16 How. Pr. 549 ; Atkinson v. Sewine, 43 How. Pr. 84 ; Gerregani v. Wheelwright, 3 Abb. Pr. (N. S.) 264. Again, the defendant was not liable for contempt unless her act might' defeat, impair, impede, or prejudice the' right or remedy of the plaintiff. We are unable to see how her act in any way tended to do that. There was no proof of any loss to the plaintiff. King v. Flynn, 37 Hun, 329 ; Coal Co. v. Hecksher, 42 Hun, 535 . We think the order should be reversed. Order reversed, without costs to either party.