Haas v. Matheson — 20 N.Y.S. 660

Majority

p. 660

Haas et al. v. Matheson.

(City Court of New York, General Term.

October 24, 1892.)

Headnote

Supplementary Proceedings—Contempt—Conditional Order.

An order in supplementary proceedings declaring the judgment debtor guilty of contempt in disposing of certain money, but allowing him to produce for examination a certain witness to prove that the money was not his, and that if he fails to so produce the witness an order to punish him for contempt will be granted, is not a declaration of his contempt on suspicion, but is within the sound discretion of the court.

Appeal from special term.

Action by Samuel H. Haas .and Isidore Freid against Edwin Matheson. ' From an order in supplementary proceedings adjudging him guilty of contempt, defendant appeals. Affirmed.

p. 661

Argued before Ehrlich, C. J., and Van Wyck and McCarthy, JJ.

Brunnemer & Bennett, for appellant. Herman Fromme, for respondents.

This is an appeal from an order in supplementary proceedings adjudging the judgment debtor guilty of contempt. The appellant contends that the order is conditional upon the production of one Butler for examination, and that the court cannot declare in advance, on mere suspicion, the judgment debtor to be guilty of contempt. I have read the order complained of carefully, and cannot agree with the appellant in his construction of the same. On the contrary, the judge, in rendering his decision, declares, in effect, that from the facts presented the judgment debtor has disposed of the $200 as testified to by him since the service of the order, and that those moneys so disposed of were his personal property, and therefore he is guilty of contempt. And although he was already convinced of the foregoing, yet (and I presume on the suggestion of the attorney for the judgment debtor) he says: “However, for the purpose of allowing him to show the latter statement is the true one, [meaning that the property was not his,] I will permit him to produce for examination Mr. Butler.” If he fails to do so, the order made to punish him for contempt will be granted. It was an additional opportunity granted to the judgment debtor by the court to change, if he could, its opinion. The order was within the sound discretion of the court, and was properly granted, and should be affirmed, with costs. All concur.