Fitzgibbons v. Smith — 41 N.Y. St. Rep. 678

Majority

p. 678

Edward Fitzgibbons, App’lt, v. Seymour G. Smith et al., Def’ts.

(Supreme Court, General Term, First Department,

Filed November 30, 1891.)

Headnote

Supplementary proceedings—Contempt.

The injunction order contained in an order for the examination of a judgment debtor supplementary to execution imposes no obligation upon him to stop payment of checks previously given by him in good faith and for a valuable consideration, and he cannot be punished for ’contempt for failing to do so.

Appeal from an order denying plaintiff's motion to punish Seymour Gr. Smith for alleged disobedience of an injunction contained in an order for his examination in proceedings supplementary to execution.

F. J. Worcester, for app’lt; Michael J. Kelly, for Seymour G. Smith, resp’t.

Mr. Smith did not disobey the injunction order. What he did was done some days before the order was served upon him. After the service he simply remained passive. Unless, therefore, upon such service he was bound to go to his bank and stop payment of checks previously given in good faith and for a valuable consideration, he has been guilty of no contempt. We think the order imposed no such obligation upon him. The checks, it seems, were so given in blank, but the state of the pecuniary relations between the defendant and his brother fully jusfied the latter in filling in amounts sufficient to withdraw the entire deposit, save some $10.50. The delivery of these checks thus in blank was intended to operate as a payment by the defendant of all the money in the bank belonging or due to his brother. So far, therefore, from the defendant’s failure to stop these checks amounting to a contempt, we think that such stoppage, or, indeed, any attempt to cancel the checks, would have been a fraud upon his part. The brother’s act in withdrawing the money was in no sense that of the defendant’s agent. He acted entirely on his own account, and withdrew what had been lawfully transferred to him in his own right prior to the service of the injunction.

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

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