Meyers v. Herbert — 19 N.Y.S. 132

Majority

p. 132

Meyers et al. v. Herbert.

(Supreme Court, General Term, Second Department.

May 9, 1892.)

Headnote

1. Supplementary Proceedings—When Deemed Abandoned.

The examination of a debtor in supplementary proceedings, enjoining the debt- or’s disposition of her property, was completed in November, 1887, and a postponement was taken to a day not fixed. Nothing further was done, but in April, 1891, a new order for examination was obtained, and it appeared that the debtor had disposed of certain property since the former examination, then owned by her, with knowledge that plaintiff claimed that the former order was in force, and after she was advised by a lawyer that the former proceedings were abandoned. Held, that the failure for so long a time to reinstate the former proceedings, or to apply for a receiver, amounted to their abandonment.

3. Same—Injunction—Contempt.

• In such a case, it appearing that the property consisted of personal ornaments, and that soon after the first examination the debtor’s husband had abandoned her, leaving her destitute and dependent, the sale of her jewelry after the proceedings had been so long dormant did not constitute a contempt.

Appeal from special term, Kings county.

Action by Christian F. G. Meyers and others against Frances E. Herbert. From an order denying a motion to punish defendant for contempt in supplementary proceedings, plaintiffs appeal.

Affirmed.

Ai-gued before Barnard, P. J., and Dykman and Pratt, JJ.

M. Clelland Milnor, for appellants. Carrington & Emerson, for respondent.

The judgment in this case was obtained in February, 1887. In October, 1887, the defendant was examined under proceedings supplementary to execution. Her examination was completed on the 2d of November, 1887. An adjournment was taken to November 12, 1887, for the examination of witnesses. On that day the judgment creditors (plaintiffs), obtained a further postponement to a future day in November, 1887, which was not fixed. The supplemental order contained the usual injunction against a disposition of her property by the judgment debtor. After the 12th of November, 1887, there was no further hearing under the order of 1887. In April, 1891, the plaintiffs obtained a new order for the examination of the judgment debtor. It appeared that the debtor had disposed of certain property she had at the examination of 1887Í to her mother, for value; the consideration being money advanced by defendant’s mother to her to a greater amount than the value of the property sold, being the jewelry of the defendant. The transfer was made April 1, 1891, alter the defendant was informed that the plaintiffs claimed that Judge Pratt’s order was still in force, and’before the new order was obtained from Judge Cullen. There was-no contempt of Judge Pratt’s order proven. The plaintiffs never applied for a receiver, or for an order for the delivery of the property to the creditor. Some three and a half years had elapsed since the close of the examination. When informed by the plaintiffs’ attorneys that they claimed Judge Pratt’s order against assignment of property was still in force, the defendant consulted a lawyer of high character for learning, and was informed that, the proceedings were abandoned, and that the injunction order terminated with the abandonment. The defendant had no lawyer to represent her on the examination under Judge Pratt’s order. The failure for so long a time to reinstate the hearing or to apply for a receiver must be deemed an abandonment of the proceedings. The property consisted, as we have seen, of the personal ornaments .of the defendant. Soon after the examination her husband abandoned her, and she became destitute, and dependent upon her mother. It was not a contempt, under the circumstances, for her to sell her jewelry after the proceedings had been so long dormant. Order affirmed,, with costs. All concur.