Walter v. Pecare — 32 N.Y. St. Rep. 841

Majority

p. 841

Louis Walter et al., Resp’ts, v. Albert K. Pecare, App’lt.

(Supreme Court, General Term, First Department

Filed June 6, 1890.)

Headnote

1. Supplementary proceedings — Second order does not supersede first.

A second order in supplementary proceedings obtained for the purpose of examining the defendant as to property obtained subsequent to the first order, does not have the effect of superseding the first order.

2. Same — Discontinuance—Code Civ. Pro., § 2454.

An order is necessary to terminate a proceeding supplementary to execution.

3. Same — Contempt.

In his examination in supplementary proceedings, defendant testified that he became entitled to $713 insurance on the life of his brother who died in May, 1887; that he received a check therefor in Septenv ber, 1887, and used the money in payment of other debts. The order was served in June or July, 1887. In proceedings for contempt, his affidavit stated that he assigned the amount of the insurance about July 1, 1887, to one M., to paya previous loan and attorney’s fees in

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the proceeding, and only received twenty dollars himself, and that he assigned the check to M. Held, that the affidavit being in conflict with his sworn testimony was unreliable, and that the order was violated by the transfer of the check.

Appeal from an order adjudging the defendant guilty of contempt, and imposing a fine, and directing his commitment until he should pay the fine, or be otherwise discharged according to law.,,

Charles H. Dyeit, for app’lt; T. Henry Dewey, for resp’ts.

The proceeding to punish the defendant for violating an order in supplementary proceedings was commenced on or about the 14th of November, 1889, and on the 7th of that month another order was obtained, requiring him to appear to be examined concerning his property, and. the application to punish him for violating the first order, which was made on the 18th of June, 1887, was opposed, upon the ground that it had been superseded by this second order, or that the proceedings themselves had been terminated.

But the second order cannot legally be attended with that effect. For it was not obtained, as the second order was in Gaylord v. Jones, 7 Hun, 480 , for the same object as the first, and its evident purpose was to examine the defendant as to property which he might have at the time when the last order was made and concerning which he could not regularly be examined under the first order. It may be that the second order was irregular, but no such infirmity attached to the first, for it was obtained after the issuing and return of an execution against the property of the defendant, "exactly as the law allowed that to be done. And that proceeding had been in no manner discontinued or abandoned. For that object § 2454 of the Code of Civil Procedure has required an order to be made, and no order of that description has ever been made in the first proceeding and it accordingly remained pending against the defendant. And without the authority of this section, where the proceeding has not in fact been discontinued, it was considered in Wright v. Nostrand, 94 N. Y., 31 , that it would remain pending. In addition to that it appears by affidavit tho$ the proceeding was .continued by regular adjournments from time to time to September,. 1889.

The first order was served upon the defendant soon after it was made, and pursuant to its direction the defendant appeared and was examined before a referee concerning his property, and in his examination he testified that he became entitled to the sum of $713 upon an insurance upon the life of his brother, who died on the 3rd of May, 1887. He received a check for that insurance in September of the same year, and used the money, obtained upon the check in the payment of other debts than that owing to the plaintiffs.

In his examination no other use of the money obtained from the insurance was in any manner intimated, but by his affidavit made in answer to the application to punish him for a contempt in using the insurance money in this manner, he stated that he had assigned the amount on or about the 1st of July, 1887, to

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Morris Mayer,• an attorney-at-law, who was his friend, and that this assignment was made to pay Mayer $500 previously borrowed from him, and $175 to pay Charles H. Dyett, his attorney in this proceeding, and that the amount actually received by himself would not exceed the sum of about twenty dollars.

But this statement in the affidavit is directly in conflict with the answers given by him before the' referee, and rendered the affidavit unreliable, as it was obviously made to shield and protect himself against the consequences of what he had previously testified he had done with the insurance money.

The effect of the affidavit is still further reduced by the omission to examine either Mayer or Dyett concerning the truth of these statements. They were each accessible to the defendant, and if the check had been assigned to Mayer, as the defendant asserted it to have been in this affidavit, he could have proved that fact by Mayer, and his neglect to do so, or to prove that Dyett received the residue of the moneys, amounting to the sum of $175, are circumstances tending to throw discredit upon the statements of the defendant as to these facts in his affidavit. By his examination before the referee, it was proved that this insurance money was owing to him at the time when the order in the supplementary proceedings was made and served upon him, and this order forbade him to make any transfer or other disposition of his property not exempt by law from execution, or in any manner to interfere therewith until a further order in the premises. This part of the order was violated by him in transferring the check to Mayer, and for that violation he became liable to be punished by the court under § 2457 of the Code of Civil Procedure.

The fine imposed upon him and the punishment to which he has been subjected, is no greater than that authorized by this and other sections of the Code. It was warranted and supported by the evidence which had been obtained from the defendant himself, and the order should be affirmed, with ten dollars costs and the disbursements.

If the appellant can be relieved in any form, it must be by an application for a re-hearing and proving by Mayer the assignment of the insurance to him before the service of the order, which, if true, would mitigate the punishment for violating the order.

Van Brunt, P. J., and Brady, J., concur.