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Oshinsky v. Gottlieb

84 N.Y.S. 871 Court N.Y. App. Term Decision date 1903-11-18 English

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p. 871
OSHINSKY v. GOTTLIEB.
(Supreme Court, Appellate Term.
November 18, 1903.)

Headnote

1. Appeal—Contempt—Objection not Made Below.
Any objection as to the allegation of service on a debtor of an order for his examination, with injunctive provisions, not being sufficiently specific as to time, place, and manner of the service, should be raised below on proceedings against him for contempt for disposing of his property after the service, the service being admitted. .
Appeal from City Court of New York.
Action by Abraham Oshinsky against Louis Gottlieb. From an order denying a motion to vacate as on a rehearing an order adjudging defendant in contempt, he appeals. Affirmed.
Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.
Charles L. Hoffman and Henry A. Freidman, for appellant.
Miller & Miller, for respondent.

The order for the judgment debtor’s examination, with the usual injunctive provisions, was served upon him, as-appears from the moving papers to punish him for contempt, and he never disputed the fact of service. If the allegation of service were not deemed to be sufficiently specific as to time, place, and manner of service, the point should have been taken in the course of the proceedings below, but upon the record before us the fact was established for the purposes of jurisdiction. Upon the merits the probabilities favor the conclusion that the money disposed of by the debtor while the injunction was in force was his own, and that the disposal was his act as principal, not as agent for his wife. The wife’s testimony, as brought out upon her examination in the proceedings,- could properly be taken as more probably true than her later statement made in an affidavit to contradict her testimony, and, the order adjudging the debtor in contempt being sufficient in form for jurisdictional purposes, the denial of the motion to vacate it upon any ground asserted below presents no subject for reversal.

Order affirmed, with $10 costs and disbursements.