Majority
p. 838William Duffus, Resp’t, v. Rose Cole, App’lt. (Supreme Court, General Term, Fourth Department, Filed July 7, 1891.)
Headnote
Contempt—Supplementary prooeedinss.After service of the order and injunction in supplementary proceedings the defendant effected the substitution of one mortgage for another on property which was in the hands of the first mortgagee under a parol mortgage. The last mortgage was for a smaller sum than the first. Held, not a violation of the injunction order.
Appeal from an order adjudging the defendant guilty of contempt in transferring her property after the service upon her of an injunction order restraining such transfer, and imposing upon her a fine of fifty dollars to apply on the judgment, with ten dollars costs.
Sam. Wandell, for resp’t; L. E. Fuller, for app’lt.
—The injunction order in this case forbade the defendant from making or suffering any transfer or other disposition of or interference with her property or in which she had any interest, legal or equitable, not exempt from execution. The alleged contempt was, that the defendant effected a substitution of one mortgage for another upon property on which she had previously given a mortgage. The diamond ring was held by the first
p. 839
mortgagee under and by virtue of a parol mortgage. After the order was served, the first mortgagee told the appellant that she must get some one to take the property off his hands. She procured Jenkins to do this. He took a new mortgage for a less sum than the old one. She in no way disposed of any interest or equity she had in the property. What she did may possibly have constituted a technical interference with her property,- but there was no real interference. Suppose she had procured Jenkins to take an assignment of the Tyler mortgage, surely that could not have been regarded as an interference with her property. It seems to us that that was all that was in effect dona She in no way lessened or interfered with or disposed of any interest she had in it In Beard v. Snook ( 47 Hun, 158 ; 13 N. Y. State Rep., 233) we held that to support a conviction for contempt of an injunction in supplementary proceedings, the legal title to the property transferred must be shown to be in the accused. Here the legal title to the interest transferred to Jenkins was not in the defendant It was in Tyler, and passed immediately to Jenkins. If, however, it can be said that it rested in the defendant for a point of time, still the interest which she transferred was acquired subsequent to the time when the order was served, and, therefore, the injunction did not apply to such subsequently acquired interest Potter v. Low, 16 How., 549 ; Atkinson v. Sewine, 43 id., 84; Gerregani v. Wheelwright, 3 Abb., N. S., 264. Again, the defendant was not liable for contempt unless her act might defeat, impair, impede or prejudice the right or remedy of the plaintiff. We are unable to see how her act in any way tended to do that There was no proof of any loss to the plaintiff. 37 Hun, 329 ; 42 id., 535; 4 N. Y. State Rep., 657. We think the order should be reversed.
Order reversed, without costs to either party.
Martin and Merwin, JJ., concur.