Alvin M. Aldrich et al., Resp’ts, v. Frank L. Davis, App’lt.(Supreme Court, General Term, Third Department,Headnote
1. Supplementary proceedings—Contempt—Special surrogate.A special surrogate who issued the original order in supplementary proceedings has power to punish a contempt thereof.
Evidence sufficient to establish contempt in disposing of property after service of order.
Appeal from order of the special surrogate of St. Lawrence county, adjudging defendant guilty of contempt of court in violating an order in supplementary proceedings.
An order for the examination of defendant in proceedings supplementary to execution was issued by the special surrogate and served on defendant on February 5, 1892.
On the 6th day of February the defendant, Frank L. Davis, in his examination before the referee, admitted that within a week he had shipped a quantity of fur to L. P. Kinney, Lebanon, New Hampshire, at Madrid, N. Y., and that this fur was all the fur he had bought that fall. Among the reasons he gave for shipping the fur at Madrid was that he wished to dispose of it without the knowledge of the plaintiffs. He refused to swear whether the fur was owned by him or not. He left it with his father to ship.
On the 10th day of February, 1892, the day to which his examination was adjourned, he further swore that his father took said fur to Madrid and that the fur was shipped in his father’s name, J. H. Davis.
On the same day J. H. Davis, father of the defendant, was sworn in the same proceedings as a witness, and stated that he shipped some fur on the 6th day of February, being the date of the prior examination of the defendant, at the request of Frank L. Davis, the defendant, at Madrid, N. Y., to L. P. Kinney, and that he himself had no fur in the bag, but shipped it in his own name at the request of the defendant.
The examination was adjourned to February 23, and on that day the defendant swore that he did not know how much fur was in the bag shipped to Kinney, and that Kinney himself did not know, but that Kinney had told him that he would give him credit for it
L. P. Kinney testified in his examination, at which Davis, the defendant, was present with counsel, which examination was had February 13, 1892, seven days after the injunction order was served on the defendant, that he received a package of furs from Madrid, N. Y., on the 9th day of February, which furs Davis had told him he had shipped the week prior to his (Kinney’s) examination. He further testified that he had not paid for them and. would not pay for them until he or Wight Brothers had examined them. »
Sawyer & Sawyer (George C. Sawyer, of counsel), for app’lt; Chamberlain & Caldwell (Worth Chamberlain, of counsel), for resp’ts.
It is not claimed that the original order in supplementary proceedings was not properly and regularly issued by A. Z. Squires, special surrogate of St. Lawrence county, under the provisions of § 2434 of the Civil Code. Therefore, the defendant, disobeying that order, may be punished by the judge who issued it as for contempt. Section 2457 of the Civil Code; Piero’s Special Proceedings, 545.
It is w;ell settled that in supplementary proceedings the judge who made the order has full power out of court to punish for contempt. Shepherd v. Dean, 13 How., 173 ; Lathrop v. Clapp, 40 N. Y., 328 .
We think that the affidavits presented to the special surrogate sustained his conclusion on the question of fact in the case.
Order affirmed, with costs and printing disbursements.
Matham, P. J., Putnam and Herrick, JJ., concur.