Gildersleeve v. Lester

character, to appoint a receiver, but I think that objection may be disposed of in a very few words. The plaintiff certainly had a right to maintain the suit. The statute expressly gave it to him. The court found liis allegations true, and the defendants were adjudged to make restoration of the moneys they had received, and of the value of the property they had misappropriated. How was such a judgment to be enforced? Certainly the plaintiff was not nersonally entitled to the money, and it is equally certain that it would have been a mere futility to direct its payment to the corporation of which the two defaulting defendants had control, for that would be simply putting it back into their own hands. It is difficult to see what other course could have been pursued than that of appointing a receiver to take possession of the moneys, and to whom the defendants should be required to pay it. He would hold it then under the direction of the court as to its final disposition, and it is not a practical question now,—at least, one not to be raised to embarrass the enforcement of tira decree,—how the court will ultimately direct that the money shall be applied to the uses of the corporation, or reach its treasury, or be disposed of for the benefit of its creditors or stockholders. I think the terms of section 1810 of the Code of Civil Procedure are broad enough to confer the right to appoint a receiver, as this action was brought in one of the cases authorized by article 2 of the title therein referred to, and that it was the only way to realize the money, as the tw'o trustees, defendants, could not be removed in the action, nor otherwise than in a suit brought by the attorney general. Section 1811, Code Civil Proc.

But is further claimed that process for contempt cannot issue against these defendants, for the reason that wherever money may be collected by execution that method of realizing is alone left open to the party entitled to it Section 1241, Code Civil Proc., provides for the enforcement of judgments by punishment as for contempt, and enacts that it may be done in a case where final judgment cannot be enforced by execution, or where the judgment requires the payment of money into .court or to an officer of the court, except where the money is due on a contract, express or implied, or for nonperj form anee of-a contract; and it is further provided that in such a case, “if the judgment is final, it may be enforced as presented in this section either simultaneously with or before or after the issuance of an execution thereon, as tire court directs.” Here it is clearly provided in most explicit terms that where the right to the money resides in an officer of the court, and direction is given to pay it to him, the power to enforce a decree awarding it is independent of the issuing of an execution, if the court so directs. The cases cited 'by the learned counsel for the defendants do not quite meet this view of the case. Jacquin v. Jacquin, 36 Hun, 378 , was a case in which defendant failed to pay, under final decree, certain costs, etc., in a .suit for separation. It was held contempt proceedings could not be resorted to, 'but, in commenting on the fourth subdivision of section 1241, the court said: “What was probably designed by this subdivision was to include such judgments as should lie recovered for moneys wrongfully withheld from the court or one of its officers by the defendant, which the court itself would be required to hold for or distribute among parties entitled to it;” and such I conceive to be the nature of this case, and that the moneys come into the hands of the receiver, as the officer of the court, to be held until the court itself, on proper application, can determine in what manner they are to be disposed of for the uses or benefit of the corporation. In re Hess, 48 Hun, 586 ,^[1] was one in which an assignee was not held liable for contempt in not paying over money to a receiver after an assignment for creditors was sec aside as fraudulent, but the effect of subdivision 4 of section 1241 is not considered in that case. Myers v. Becker, 95 N. Y. 486 , does not touch the point, for it was not a final judgment that was sought to be enforced. O’Gara v. Kearney, 77 N. Y. 423 , was stated in the opinion not to be a case coming under section 1241, for the judgment, when entered, would direct the payment of the money, not to the court or its officer, but to the party. None of those cases meet the direct and primitive terms of subdivision 4, § 1241. That contemplates and distinctly provides that in certain cases where money is to be paid into the court or into