Watson v. Fitzsimmons — 12 N.Y. Super. Ct. 629

Majority

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Watson v. Fitzsimmons.

Headnote

When the incipient proceeding to punish a party as for a contempt, is an order to show cause “ why he should not be punished for the alleged contempt," and the contempt is denied, it is not essential to the validity of any final order that may be made, that interrogatories should be filed.

If a reference be ordered to ascertain and report the testimony and the facts, and both parties appear before the referee and submit evidence, the defendant cannot object on the final hearing upon the report, that no interrogatories had been filed and answered.

In proceedings supplementary to execution, the judgment debtor cannot he punished, as for a contempt, for refusing to deliver his property to the receiver, when the order appointing the receiver does not contain such a direction, and no subsequent order to that effect has been made.

At Special Term,

December 31, 1855.

The plaintiff, a judgment creditor of the defendant, obtained an order supplementary to execution, in the usual form, dated the 18th of October, 1854. The defendant appeared and was examined, and on the 15th of February, 1855, a receiver of his property was appointed. On the 22d of October, 1855, an order was made on the papers annexed to it, that defendant show cause “why he should not be punished for the alleged misconduct,” which was, that he had refused to deliver his property to the receiver, or why such further order, as was proper, should not be made. Mo order existed requiring him to so deliver his property to the receiver. On the 22d of October, on the return of that order, he denied the alleged contempt, and thereupon a further order was made referring it to a referee to examine the defendant and other witnesses, and take testimony and report the same, and whether the defendant was guilty of a contempt, either in disposing of his property contrary to the prohibitions of the order of the 18th of October, 1854, or in refusing to deliver his property to a receiver.

The referee examined the defendant and other persons, and took other testimony, and reported, as his opinion thereon, that the defendant was guilty of a contempt in both respects.

On the 2Tth of December, 1855, the plaintiff moved, before

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Bosworth, J., sitting at Special Term, on the referee’s report and all the prior proceedings, for an order adjudging the defendant guilty of a contempt, in both respects.

Chas. H. Hunt, for plaintiff.

F. H. P. Bryan, for defendant,

Insisted that the Judge or court had no power to make the order applied for, on the papers before him. That a party, denying an alleged contempt, cannot be adjudged guilty of it, until after interrogatories had been put to, and been answered by him. That the most that could now be done, was to order interrogatories to be filed and answered, or an attachment to be issued. The other-points discussed, related rather to the merits, than to the proper mode of proceeding.

held, that 2d R. S. 536, § 5, prescribes two modes of proceeding: one, an order to show cause why the defendant “ should not be punished for the alleged contemptthe other, “ an attachment to arrest such party, and to bring him before such court to answer for the alleged contempt.” The statute is silent, when the mode first named is adopted, as to the course to be thereafter pursued, whether the defendant appears or fails to appear. It may, therefore, be such as conforms to the general practice of the court upon any order to show cause why relief should not be granted.

Section 19, (2 R. S. 537,) which requires written interrogatories to be filed, and written answers, on oath, to be made to them, by its express terms, relate to a “ defendant arrested upon an attachment.” That is also a proper course when a defendant appears upon an order to show cause why he should not be punished, but the statute does not, in terms, require it, in such a case. (2 Sand. S. C. R. 727 and 728.)

This proceeding is one had in the action in which the judgment was recovered, and § 271, sub. 3, authorizes a reference in such a case. The order of reference was clearly not void, and the defendant not having appealed from it, but, on the contrary, having been examined under it, cannot object now, to its validity or regularity, nor to that of proceedings regularly had under it.

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For good cause, the court in its discretion, might send the matter back to the referee to take further testimony, but no such application is made.

The proceedings are regular, and the defendant must be adjudged guilty of a contempt, in having disposed of his property in violation of the injunction contained in the order of the 18th of October, 1854. The order of reference directed an investigation of that matter, and the defendant cannot now object that it was not specified in the order to show cause.

But in refusing to deliver his property to the receiver, he has not disobeyed any order of the court, for none has been made requiring him to so deliver it. He refused to do that which it was his duty to do ; but that was a duty resulting from a change of title to the property produced by the appointment of a receiver, and not from an order which he had refused to obey. To punish, as for a contempt, for refusing to deliver property to a receiver, an order requiring such delivery is a necessary pre-requisite. The Judge imposed a fine on the defendant, for having disposed of his property contrary to the order of the 18th of October, 1854. (On appeal to the General Term, the order was affirmed.)