Barnard v. Starkey — 61 N.Y. St. Rep. 616

Majority

p. 616

John T. Barnard, as Temporary Administrator, etc., Resp’t, v. Clinton W. Starkey et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed June 18, 1894.)

Headnote

Judgment—Excuse nob non-compliance.

Disobedience to a judgment will not be excused on the ground that compliance with another judgment has rendered obedience impossible, where the party has failed to take the usual legal steps for his own protection.

Appeal from an order denying a motion to punish for contempt.

Geo. G. Barnard, for app’lt; John F. Sullivan, for resp’t.

—The plaintiff recovered a judgment, on the decision of the court of appeals, that defendants forthwith deliver to him certain specified securities. With this judgment, the defendants fail to comply, and a motion is made to punish defendant Starkey for contempt. He answers that in an action in this court in Hew York county, to which this plaintiff was not a party, he (Starkey) was removed as trustee, and directed to transfer the securities to the People’s Trust Company, as substituted Irustee; that in compliance with such judgment he so transferred the securities. This transfer was made pending this litigation, after a judgment in the trial court against the plaintiff, which was then on appeal to the general term, where it was reversed. The court denied the motion to punish for contempt, holding the plaintiff must seek relief in the Hew York action. This we think erroneous. The plaintiff's judgment is in full force and effect. The defendant Starkey has not sought to be relieved from it. The plaintiff has therefore the right to enforce it to the same extent as any other judgment. Had the transfer been made previous to the commencement of this action, the defendant would have been compelled to plead that fact as a defense. If he failed to do so, and judgment went against him, he could not attack that judgment afterwards. The transfer being had pending the action, he could, after the decision at general term, set up the fact by supplemental pleading. He could have secured perfect protection by application to have the new trustee made a party to this litigation, and by having the plaintiff made a party to the litigation in Hew York. He failed to take any steps to protect himself, and now

p. 617

fails to comply with the judgment against him. We do not say that he may not obtain relief now by applying to open the judgment in this action, and obtaining an order in the New York action for the transfer of the bonds to the plaintiff. But it is clear to us that it is the defendant who is embarrassed by the two judgments, and who must seek relief, and not the plaintiff. The plaintiff has the right to stand on his judgment, ana, having-recovered it, cannot be compelled to bring a new litigation. The motion might well have been left open to permit the defendant to apply for relief, but the absolute denial of the motion to punish for contempt practically abrogates the plaintiff’s judgment The order appealed from should be reversed, with $10 costs and disbursements, and motion granted, but proceedings thereunder stayed for 60 days, to enable defendant to apply for such relief in this action and in the-New York action as he may be advised.

All concur.