Avery v. Ackart — 46 N.Y.S. 1085

Majority

p. 1085

(20 Misc. Rep. 631.)

AVERY v. ACKART.

(Onondaga County Court.

June, 1897.)

Headnote

1. Supplementary Proceedings—Satisfaction of Judgment.

A judgment debtor cannot be punished for contempt in violating an order in supplemental proceedings prohibiting him from transferring his property, where he had satisfied the judgment with the assignee thereof before the motion papers in the application for his punishment were served upon him, though the judgment creditor made the assignment without allowing anything to his attorney, whom he had agreed to pay one-half of the judgment.

2. Judgments—Assignment—Setting Aside.

An order setting aside an assignment of a judgment, and a satisfaction thereof obtained from the assignee, cannot be made without the presence in court of such assignee.

Application by the attorney of Augustus S. Avery, a judgment creditor, to have Frank C. Ackart, the judgment debtor, punished for contempt in violating an injunction order in supplementary proceedings forbidding any conveyance of his property, and for an order set

p. 1086

ting aside an assignment and satisfaction of the judgment, the attorney having an interest in the same for his debts.

Denied.

Frank Sargent, for the motion.

D. B. Magee, opposed.

Upon obtaining satisfaction of the judgment there is nothing upon which these proceedings can rest. The judgment debtor simply did what he had a legal right to do,—obtained a satisfaction of the judgment against him,—and thereupon these proceedings, so far as the judgment debtor is concerned, necessarily terminated. They were instituted for the purpose of collecting the judgment, and all the rights of the judgment creditor incidental to such a proceeding were for the purpose of aiding in the accomplishment of such collection, and when the judgment is satisfied that is the end of the matter. Whether the bill of sale was executed before the delivery of the satisfaction of the judgment I deem of no importance, for the judgment debtor has obtained a satisfaction ©f the judgment, which is no longer in existence. The motion to punish for contempt is denied, without costs. So far as setting aside the satisfaction and assignment is concerned, no order can be made without the presence in court of the assignee of the judgment creditor, the owner of the judgment, and I doubt whether the satisfaction can be set aside so far as the judgment debtor is concerned. I do not see what obligation to the judgment creditor or to the moving attorney he has violated. He has simply obtained a satisfaction of the judgment against him from the owner of the same, which he had a right to do.

Quaere, if the assignee of the judgment creditor had notice of the agreement between his assignor and the moving attorney herein, whether he cannot be compelled to carry out the agreement of the judgment creditor? In other words, if he made the purchase for the purpose of depriving the attorney for the judgment creditor of the benefit of the agreement entered into between him and his client, is he not liable to carry out such an agreement? The motion to set aside the satisfaction and assignment denied for the reasons stated, but without prejudice to a renewal.

Motion denied, but without prejudice to a renewal.