National Wall-Paper Co. v. Gerlach

—An examination of the testimony taken in these supplementary proceedings bears but one construction, and leads but to one conclusion,—that in transferring and paying out the moneys testified to, and in executing and delivering the general assignment of his property, by the defendant, after the service of an order in supplementary proceedings containing an injunction forbidding him from transferring or otherwise disposing of his property, he was and is guilty of contempt of court. It •was his voluntary act, and the plaintiffs were injured by the same, •since they had taken steps by which they would have procured .a lien on the estate, real and personal, of the judgment debtor. It matters not how slight the lien might have been, the judgment ■debtor could not assume the power to judge and determine the issue, and thus violate a positive order of the court, because, in his judgment, there was not enough to meet the creditors’ claim. He could not be the judge of this, but must leave it to be determined by the regular and orderly proceedings. The case of Canda v. Gollner, 73 Hun, 494 ; 56 St. Rep. 153 , we think, is directly in point. See McCorkle v. Herrman, 117 N. Y. 297 ; 27 St. Rep. 333 ; Stevens v. Ogden, 130 N. Y. 185 , 186 ; 41 St. Rep. 331 .

It is claimed, however, that there was no contempt, because in a similar proceeding, on March 29, 1894, in which Ellen B. M. •Connolly was plaintiff, and this defendant was the defendant, a receiver was appointed ; but it is declared, and not contradicted, •xliat no bond fiad been filed in the office of the clerk of the city mid county of New York, as required by statute, and which requires that, before he (the receiver) enters upon the execution of the trust, be shall execute to the people of the state of New York a bond with sufficient sureties, to be approved by a justice of this court, and file said bond with the clerk of the city and county of New York, and that such powers as receiver, upon filing such bond, be invested with all the rights and powers as receiver, according to law, and the receiver’s appointment is not therefore complete until his bond is filed. The receiver’s title to the real ■estate is, at most, a qualified title in the nature of a security for the plaintiff in the judgment, and did not exhaust the title of the judgment debtor. Subject to the rights of the receiver to resort to the land to pay the judgment, the title remains in the judgment debtor. Moore v. Duffy, 74 Hun, 78 , 80; 57 St. Rep. 746 .

The defendant was therefore guilty of contempt, and the order appealed from is reversed, with costs, and the proceeding remitted