Majority
p. 626Christian F. G. Myers et al., App’lts., v. Frances E. Herbert, Resp’t. (Supreme Court, General Term, Second Department, Filed May 9, 1892.)
Headnote
1. Supplementary proceedings—Abandonment.The judgment creditor in November, 1887, obtained an adjournment of the examination to a future day in that month which was not fixed. Nothing further was done until April, 1891, when a new order was obtained. Meld, that the failure for so long a time to reinstate the hearing or apply for a receiver must be deemed an abandonment of the proceedings.
3. Same—Contempt.
Where the judgment debtor, a married woman, was abandoned by her husband after the examination, and became destitute and dependent on her mother, it is not contempt for her to sell her jewelry after the proceedings had been so long dormant.
Appeal from order denying motion to punish defendant for contempt in violating the injunction clause of an order in supplementary proceedings.
M. Olelland Mtlnor,, for app’lts; Carrington & Emerson, for resp’t.
The judgment in this case was obtained in February, 1887. In October, 1887, the defendant was examined under proceedings supplementary to execution. Her examination was completed on the 2d of November, 1887. An adjournment was taken to November 12, 1887, for the examination of wit
p. 627
nesses. On that day the judgment creditor (plaintiffs) obtained a further postponement to a future day in November, 1887, which was not fixed The supplemental order contained the usual injunction against a disposition of her property by the judgment debtor. After the 12th of November, 1887, there was no further hearing under the order of 1887. In April, 1891, the plaintiffs obtained a new order for the examination of the judgment debtor. It appeared that the debtor had disposed of certain property she had at the examination of 1887 to her mother for value; the consideration being money advanced by defendant’s mother to her to a greater amount than the value of the property sold, being the jewelry of the defendant. The transfer was made April 1, 1891, after the defendant was informed that the plaintiffs claimed that Judge Pratt’s order was still in force, and before the new order was obtained from Judge Cullen. There was no contempt of Judge Pratt’s order proven. The plaintiffs never applied for a receiver or for an order for the delivery of the property to the creditor. Some three and a half years had elapsed since the close of the examination. When informed by the plaintiffs’ attorneys that they claimed Judge Pratt’s order against assignment of property was still in 'force, the defendant consulted a lawyer of high character for learning, and was informecl that the proceedings were abandoned and that the injunction order terminated with the abandonment. The defendant had no lawyer to represent her on the examination under Judge Pratt’s order. The failure for so long a time to reinstate the hearing or to apply for a receiver must be deemed an abandonment of the proceedings. The property consisted, as we have seen, of the personal ornaments of the defendant. Soon after the examination her husband abandoned her and she became destitute and dependent upon her mother. It was not a contempt, under the circumstances, for her to sell her jewelry after the proceedings had been so long dormant.
Order affirmed, with costs.
Dykman and Pratt, JJ., concur.