Hart v. Johnson — 7 N.Y. St. Rep. 133

Majority

p. 133

William R. Hart, Resp’t, v. Henry Johnson, impl’d, etc., Appl’t.

(Supreme Court, General Term, Fifth Department,

Filed Fébrua/ry 11, 1887.)

Headnote

1. Contempt—Review of proceeding eor punishment for, governed by Code Civ. Pro., §§ 1356, 1357.

A proceeding to punish a person for contempt is a special proceeding,

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and the mode of review is provided by Code Civil Procedure, sections 1356, 1357.

3. Same—Order, need not be final that appeal mat be taken.

It is not necessary that an order should be final that an appeal may be taken from it.

3. Same—Waiver of objection by personal appearance.

In a proceeding to punish a party for contempt for a failure to answer questions relating to property of a judgment debtor, as directed by an order made: Held, that the party having appeared and submitted to examination, pursuant to the order, and having admitted the service thereof, could not thereafter raise the objection that he had not been served with it.

4. Same—Waiver of objection by appearance by attorney.

A party cannot object that an order to show cause was not served upon him personally, where it was served upon his attorney, and the attorney appeared for him upon the return day and procured an adjournment of the proceedings.

5. Same—Refusal to answer—Prejudicial to judgment creditor.

It appearing that one was a judgment debtor of this plaintiff, that an execution had been issued and returned unsatisfied, and that an order had been procured to examine a person on the ground that he had property of the judgment debtor: Held, that his refusal to answer pertinent questions as to whether he had such property did of necessity tend to defeat, impair, impede and prejudice the rights of the judgment creditor.

6. Supplementary proceedings—Examination of third party—Scope of.

Held, that any question tending to show that he had such property was pertinent and proper.

Appeal from an order of the Wayne special term adjudging Henry Johnson guilty of a contempt, and ordering a reference to ascertain and determine the loss or injury occasioned by his contempt.

S. B. McIntyre, for resp’t; John H. Camp, for app’lt.

The plaintiff as a judgment creditor of George H. Bowman and others upon an affidavit showing that the appellant has property of the judgment debtors and is indebted to them in an amount exceeding ten dollars, procured an order requiring him to appear and be examined and to answer concerning the same. Upon such examination numerous questions were asked which he declined to answer, and thereupon upon application to the special term the order appealed from was made.

It is contended in the first place that the order is not appealable for the reason that it is not a final order. Proceedings to punish a person for contempt is a special proceeding, and the mode of review is provided by sections 1356 and 1357 of the Code. The appeal in this case was taken under the former section, which provides that “an appeal may be taken to the general, term of the supreme court, or of the superior city court, from an order affecting a substantial right made in a special proceeding at a special term, or a trial term of the same court, or in the supreme.

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court at a term of a circuit court, or made by a judge of the same court in a special proceeding instituted before him pursuant to a special statutory provision or instituted before another judge and transferred to or continued before him.”

It will be observed that this section provides that an appeal may be taken from “an order affecting a substantial right.” As this section was originally adopted in 1876 it provided that an appeal could be taken from a final order affecting a substantial right, and to the same effect were the provisions of section 1357 as adopted in 1876, but by the amendment of these sections in 1877, the word “final ” preceding the word “ order” was stricken out. We must assume that the legislature intended by this amendment to effect a change in these sections, for unquestionably before this amendment a final order in a special proceeding only would be appealed from.

The fact that the amendment strikes out the word “final,” necessarily leads to the conclusion that it was intended to enlarge the scope of the sections so as to permit an appeal from any order that affects a substantial right. • The reviser, in his note to these sections, expressly states that tins was the object of the amendment. It is true that the word “final” is retained in sections 1358 and 1359, and in the absence of the amendment striking out the words “final” in the two preceding sections, it might be considered as explaining what order was meant by those sections, but the reviser, in his note, also informs us that the word “final,” in the last two sections, was left in by an error. We consequently are of the opinion that the right to appeal is not limited to final orders in special proceedings.

It is first contended, on the part of the appellant, that the original order for the examination of Johnson was never served upon him. The affidavits read fail to show a •service. The most that they show is that the papers were sent to one Mason and that he procured another person to serve the papers, and that that person had reported to him that they were served; but Johnson and his attorney appeared, and Johnson was sworn and submitted to an examination without raising any question in reference to the service of the order upon him, and upon the examination, when asked the question, “When was the order in these proceedings served upon you?” he answered, “I can’t give you the date; it was last month or this month; that’s as near as I can state it.” This we regard as a sufficient admission of service to give the court jurisdiction.

Again, it is claimed that the court acquired no jurisdiction of the proceedings to punish for contempt, for the reason that the order to show cause was not served upon

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Hr. Johnson. The order was in fact served upon the. attorney who appeared for him in the supplementary proceedings. The attorney appeared for him upon the return day of the order to show cause and two adjournments were procured. On the third day to which the proceedings had. been adjourned Johnson for the first time objected to the jurisdiction of the court, upon the ground that the order to show cause was not served upon him personally. We are of the opinion that he was too late and that his objection was not well taken. The supplementary proceeding was the proceeding upon which the proceeding to punish for contempt was based. An attorney appeared for him in those proceedings, and the attorney who subsequently raised the objection that the order was not personally served appeared for him on the return day of the order to show cause and procured an adjournment. Watrous v. Kearney, 11 Hun, 584 ; S. C., affirmed, 79 N. Y., 496 ; Pitt v. Davison, 37 id., 235.

Again, it is contended that the court erred in adjudging that the misconduct of the defendant did actually defeat, impair, impede and prejudice the rights and remedies of the judgment creditor. Undoubtedly there must be evidence before the court that sustains this adjudication. Whether or not the misconduct alleged did in fact defeat, impair, impede and prejudice the judgment creditor is to be determined from the facts and circumstances in the case. Fisher v. Raab, 81 N. Y., 235 .

The fact appeared that Hart was a judgment creditor; that an execution had been returned unsatisfied; that an order had been procured to examine Johnson upon the ground that he had property of the judgment debtors. His refusal to answer pertinent questions as to whether he had such property of necessity did tend to defeat, impair, impede and prejudice, etc., the rights of the plaintiff.

It is also contended that many of the questions were remote and did not bear upon the subject upon which the order for examination had been made. Johnson was ordered to appear and answer in reference to his having property of the judgment debtors. Any question tending to show that he had such property, is pertinent and proper. The questions which he refused to answer bear upon the question as to whether or not himself and the other judgment creditors had purchased the patent right which was subsequently conveyed to their wives in view of their insolvency, for the purpose of hindering, delaying and defrauding creditors, and as to whether he, claiming to act as the agent of his wife, had the proceeds of any such property in his possession. If the judgment debtors had transferred property to their wives in fraud of the right of

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creditors, and such property or the proceeds thereof was in Johnson’s hands, the judgment creditor had the right to a discovery of this property in these proceedings, and the questions calling for the facts in reference thereto were proper and pertinent.

It follows that the order appealed from should be affirmed, with ten dollars costs and disbursements.

Smith, P. J., Barker and Bradley, JJ., concur.