Taber v. Jack — 35 N.Y. St. Rep. 832

Majority

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D. Hartman Taber, Rec’r, App’lt, v. Samuel Jack, Impl’d, Resp’t.

(Supreme Court, General Term, Fifth Department,

Filed January 23, 1891.)

Headnote

Contempt—Judgment fob payment op money cannot be enforced by THESE PROCEEDINGS IF COLLECTIBLE BY EXECUTION.

Plaintiff as receiver recovered judgment directing defendant to pay to Mm a sum of money, being the value of property claimed to have been sold by him in violation of an injunction order. Held, that such judgment could not be enforced by proceedings for'contempt, as it was capable of being enforced by execution.

Appeal from an order of the special term of Erie county, dated the 13th day of May, 1890, denying the plaintiff's motion to punish the defendant Jack for non-compliance with g judgment requiring him to pay over to the plaintiff the sum of $106.33.

H. B. Cone, for app’lt; F. C. Peck, for resp’t.

The application made to the special term was for an order requiring the defendant Jack to pay the plaintiff the

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sum. of $106.33, or, in default of such payment, punishing him for contempt in the manner provided by law. This motion was denied -by the court, and from the order entered upon such decision an appeal has been taken to this court

Upon the papers before the special term the decision of the •court could not well have been in favor of the application.

The special term and ourselves have been obliged to resort to conjecture for many of the proceedings in court antecedent to the motion, and upon which alone the motion could be based. The plaintiff is described as receiver of the property of Samuel Jack in the title of the case, but in what judicial proceeding, if any, he was appointed, and at whose instance, is not disclosed. Á copy of 'the judgment, as contained in the appeal papers, adjudicates that a transfer of the personal property mentioned in the complaint was fraudulent and void as against the plaintiff and the judgment creditor, George C. Gould, and that such transfer be cancelled and set aside. Upon what facts the judgment proceeded we are not advised.

The judgment further provides that title to the property mentioned in the complaint vested in the plaintiff by virtue of his appointment upon the 6th day of May, 1889, and that the sale of twenty-eight sheep by Samuel Jack was in violation of the injunction order dated that day appointing the plaintiff said receiver, though what the injunction order was, in fact, and under what circumstances the defendant sold the sheep, we are not advised. The following is the material part of the judgment: “ It is further ordered and adjudged that the defendant Samuel Jack account and pay to the plaintiff on demand the avails of said wool and sheep, viz.: the sum of $106.33.”

Treating the case as containing all the facts necessary to support the judgment as it is set forth," it is clear that the plaintiff has mistaken his remedy in endeavoring to enforce the judgment by proceedings to punish the defendant for contempt The plaintiff relies upon subd. 4 of § 1241 of the Code of Civil Procedure as warrant of authority for this proceeding. It is provided by this section, among other things, that: “ Where the judgment requires the payment of money into court, or to an officer of the court, except where the money is due upon a contract, express or implied, or as damages for a non-performance of a contract,” a party willfully neglecting to pay the judgment may be punished for contempt of the court. But this section will not support the contention of the appellant; for if the judgment be final, as this clearly is, and can be enforced by execution, then resort to contempt proceedings cannot be had by the terms of the statute.

By § 1240 a final judgment may be enforced by execution: (1). “ Where it is for a sum of money in favor of either party, or directs the payment of a sum of money.” This judgment directs the payment by the defendant to the plaintiff of a sum of money, being the value of property supposed to have been sold by the defendant Jack in violation of the injunction order.

In the Matter of Hess, 48 Hun, 586 ; 16 N. Y. State 255,

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it was held that an assignee could not be required by the proceedings for contempt to pay over a sum of money found to be due him from the receiver appointed in an action brought to vacate-the assignment, for the reason that the order in the case was-capable of being .enforced by execution, in pursuance of the statute above quoted.

In the case of the People ex rel. Borst v. Grant, 41 Hun, 351 ; 2 H. Y. State Rep., 592, it was held that a failure to pay money pursuant to a judgment cannot be treated as contempt, for the reason above stated.

Such, likewise, was the case of the People ex rel. Fries v. Riley, 25 Hun, 587 .

In O’Gara v. Kearney, 77 N. Y., 423 , it was decided that a direction for the restitution of moneys paid upon - a judgment which had been set aside upon a motion or reversed upon appeal was, in effect, a judgment for a sum of money under § 1240 of the Code, and enforceable by execution, and that, accordingly, an order punishing a party for contempt in not complying with such a direction was unauthorized.

The order appealed from should be affirmed, with ten dollars-costs and disbursements.

Dwight, P. J., and Corlett, J., concur.