Ross v. Butler — 32 N.Y. St. Rep. 212

Majority

p. 212

William A. Ross et al., Resp’ts, v. John N. Butler, Impl’d, App’lt.

(Supreme Court, General Term, First Department

Filed June 6, 1890.)

Headnote

1. Contempt — Decebe, to be enfobced by attachhent, must be specific.

To authorize the enforcement of a decree by attachment as for contempt, such decree must be definite and certain, and must direct the doing of a specific act; if to pay money, then to pay a specific sum.

2. Same — Assignee fob ceeditobs.

A decree on an accounting by an assignee for creditors directing him to pay referee’s fees, costs, etc., to be taxed, and pay the balance pi'orata among the creditors cannot be enforced by attachment, as the amount to be paid the creditors is uncertain and remains to be determined after the fees and costs have been taxed.

S. Same.

Whether the payment of money under a decree in such proceedings, under any circumstances, could be enforced by proceedings for contempt, quiere.

Appeal by the defendant Butler, as assignee, from an order adjudging the appellant guilty of contempt.

Lucien Birdseye, for app’lt; G. Richards, for resp’ts.

Without definitely passing upon the point whether under any circumstances an attachment could issue for ;he enforcement of a decree entered in an action similar to the me at bar, which is a matter of more than grave doubt, In re Hess, 48 Hun, 586 ; 16 N. Y. State Rep., 255, it is clear that n the position in which this action was at the time the order ippealed from was made, and from the nature of the order itself, he court had no power to make the same.

This action was brought to compel the appellant as assignee mder a general assignment for the benefit of creditors to render ,n account of the estate coming into his hands as such assignee ,nd to distribute the moneys remaining in his hands among the reditors entitled thereto.

Certain proceedings having been had, on the 16th of April, 889, a decree was entered adjudging that a certain sum of money ras in the hands of the said assignee from which balance the ssignee was directed to pay the several plaintiffs or their attorteys their costs and disbursements, including the sum of $-, he fees of the referee, together with an additional allowance; aid costs to be taxed by the clerk of the city and county of Hew fork. The assignee was further directed to pay to the defendant ssignee’s attorney his costs and disbursements, to be taxed in ke manner. He was then directed to retain a sum specified for is compensation as commissions, and also an additional amount £ ten dollars costs, and wás then directed to divide the residue £ the fund remaining in his hands amongst a list of 133 credits pro rata and without preference, the amount of the claims of íe creditors against the assigned estate being stated, but the nount which was to be paid to them not being determined.

If there is one thing which is well settled in reference to the ower of the court to enforce by attachment its judgment or scree, it is that such judgment or decree shall be definite and srtain; that there shall be no opportunity for ambiguity, but sat the party proceeded against is to be adjudged to do a cerin specific act; if it is to pay money, then to pay a specific sum : money.

In the case at bar who is to determine as to what amount in filars and cents the moving creditors in this proceeding are to stain ?

The referee’s fees have not been determined; the costs have )t been determined; and the amount which each creditor is to ceive has not been determined. This is all matter of calculation be gone into after the amount of the referee’s fees is settled and e costs taxed. Who is to determine when these things have sen legally and regularly done ?

In order that a commitment may issue under any circumstances, already stated, the precise thing to be done by the party proeded against must be stated in the judgment or order.

When we come to examine the order adjudging the party in >ntempt, what do we find

It is that the appellant be punished by imprisonment, as for a ntempt, unless within five days he pay to the moving creditors,

p. 214

or their attorneys, the amount due under the judgment, together with ten dollars costs- of these proceedings.

Who is to determine the amount due under that decree ? The moving creditors or the assignee ?

The appellant has not been directed to do any specific thing, and if a commitment were issued upon such an order it v^ould be impossible for the sheriff to determine when the appellant had conformed to its requirements.

It is absolutely clear that a party cannot be adjudged to be in contempt without definitely stating what he shall do in order to purge himself of the contempt. There is no such statement in this case. The court has not yet determined the precise amount which he is to pay to these various creditors, and until it does the appellant cannot be proceeded against by this class of proceeding.

But by anything that has been said we do not intend to intimate that under any circumstances the payment of money under . a decree of this kind can be enforced by proceedings for contempt.

The order should be reversed, with ten dollars costs and disbursements.

Brady and Daniels, JJ., concur.