Majority
p. 408DAVID WOOLF, Plaintiff and Respondent, v. AARON JACOBS, Defendant and Appellant.
Headnote
I. Supplementary Proceedings.1. Injunction in.
a. When non-adjournment of proceedings does not ea/use the injunction to fall.
1. Where the proceedings standing adjourned to a certain day, the defendant in the meantime obtains an order to show cause why they should not be set aside, and a stay of proceedings until the motion to set aside should be decided, and is successful in obtaining an order granting this motion, which, however, is reversed on appeal, but no adjournment of the supplementary proceedings was had on the day to which it stood adjourned at the time when the stay was granted—
Held,
1. That under these circumstances, notwithstanding the non-adjournment of the supplementary proceedings, and notwithstanding the order at special term setting aside the proceedings, the injunction continued in full force.
2. That the conveyance by the judgment debtor, after the Special Term order and before the General Term order, of real estate deeded to him, by deed dated before the granting of the injunction, and delivered after the Special Term order but before the General Term order, was a violation of the injunction, and subjected the judgment debtor to punishment as for a contempt[1]
II. Contempt.—Injunction.—Conveyance of Real Estate.
1. What facts do not authorize a holding, that a conveyance of real estate by one who is by an injunction restrained from parting with his property, is not in judgment of law a violation of the injunction.
1. The ba/re fact that the property so conveyed was, although standing in the name of the one so enjoined, in fact purchased with the money of his wife advanced for that purpose does not authorize such holding.
p. 409Before Mowell and Curtis, JJ. Decided December 31, 1873.
Appeal from an order.
This was an appeal from an order directing an attachment to issue against the defendant for a contempt in disobeying an injunction order dated July 7, 1870, made in proceedings supplemental to an execution. The order contained the usual injunction enjoining the defendant from disposing of his property.
The proceedings were regularly adjourned to the 30th of August, 1870. On the 17th of August the defendant obtained an order to show cause on the 22d of August, why the judgment in the supplementary proceeding should not be vacated, and a new trial granted, with a stay of all proceedings on the judgment on the part of the plaintiff until the hearing and decision of the motion. The motion was not decided until January 12, 1871, when it was granted, and an order to that effect entered on that day. Upon appeal to the General Term, the decision was reversed, and an order to that effect entered on that day.
The motion for the attachment was founded upon proof that during the pendency of the stay of proceedings the defendant had violated the injunction by conveying certain real estate.
The papers on appeal show that no adjournment of the supplementary proceeding was had on the 30th of August, 1870, or at any time afterwards; that the real estate conveyed by the judgment debtor had been con veyed to him by a deed executed by Simon S. West-brook, which although dated. February 14, 1871, yet was not delivered to or received by him until October 18, 1871, and although the legal title to such premises stood in the name of the judgment debtor by the con
p. 410
yeyance to him, yet the purchase therefor was paid with money belonging to the wife, advanced by her for that purpose.
"Upon these subjects the judgment, debtor in his affidavit swore as follows:
“Deponent further says, that the money with which the said property in question was bought was the money and separate property and estate of his wife, Hannah Jacobs, who is now, was then, and has been for the last ten years, engaged in the business of tailors’ trimmings, in the city, on her own account and in her own name, and that the taking of the deed of said property in deponent’s name and of transferring the said property in his name ivas a mere matter of convenience and form, inasmuch as deponent was a judgment creditor of the said Woolf, on an execution against whom said property had been sold by the said Westbrook, as sheriff of Ulster County, but that the money paid and received therefor belonged to, and was received by, the said Hannah Jacobs.”
Christopher Fine, attorney and of counsel for appellant, urged:
1st. Even the nominal ownership in Mr. Jacobs did not come to him until the 18th day of October, 1871, while the supplementary order was made and served on the 1th day of July, 1870.
After acquired property is not bound or affected by the supplementary order, etc. (Woodman v. Goodenough, 18 Abb. Pr. 265 ; Graff v. Bennett, 25 How. Pr. 470 ; Campbell v. Genet, 2 Hill, 294 ; 3 Abb. N. S. 264).
2d. The defendant, Mr. Jacobs, did not actually own the property, but the same belonged to his wife.
This is uncontradicted.
3d. The supplementary order of Chief Justice Barbour of 7th July, 1870, had been terminated, waived, and abandoned by the plaintiff, and was superseded
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"by the subsequent order of the court of 12th January, 1871, granting a new trial.
The case at bar is quite distinguishable from the case of Cowdrey v. Carpenter ( 2 Rob. 606 ). In that case the question was whether one judge could set aside or dismiss a supplementary order granted by another judge, because an appeal had been taken from the judgment. In the case at bar, the questions are, did not the order granting a new trial, and the various other orders, supersede the order for the examination? and did not plaintiff, both expressly and by his neglect ever to revive the order for examination, and by his long and otherwise unexplained laches, waive any and all advantage under the supplementary order of 7th July, 1870 ? The order was for his benefit, and of course he could waive it.
“The proceedings may be terminated as absoltitely ‘6 by the or editor1 s abandonment of them as by an order 11 of the judge before whom they are pending.’ ’ Designedly omitting to attend on an adjourned day, etc.,will be deemed an abandonment (Squire v. Young, 1 Bosw. 690 ).
Surely, then, omitting to have any time or place fixed for examination—omitting to have any day adjourned or otherwise designated, and allowing the whole order to sleep from February 3, 1872, until the 15th day of October, 1872, and, indeed, even to the present time, should be held to be an abandonment of the order for examination.
Unless the proceedings are regularly adjourned from day to day, jurisdiction is lost of them (Squire v. Young, 1 Bosw. 690 .
C. Bainbridge Smith, of counsel for respondent, urged :
1st. The order restraining the defendant from parting with any of his property was in full force and effect when he conveyed the property to Bernstein.
p. 412
If an injunction granted on a creditor’s bill is dissolved because the bill does not show that the remedy at law is exhausted, the defendant should, nevertheless, be punished for his disobedience, by being charged with the costs of the proceedings against him for his contempt (Smith v. Fitch, Clark, 265 ; Sullivan v. Judah, 4 Paige, 444).
2d. The case of Cowdrey v. Carpenter (2 Robertson R. 601) is decisive of the question now before the court.
I. The above case is not inconsistent with those cases where the proceedings have been voluntarily abandoned by the plaintiff (Squire v. Young, 1 Bos. 690).
II. Although it was said in Hawes Barr ( 7 Rob. 452 ) “ whether the General Term can make a new order requiring the judgment debtor to appear and be examined, or direct a single judge to make such an order, is ■a matter not free from doubt.”
There were sufficient facts, we think, before the Special Term to put the defendant in contempt. The allegation that the defendant’s wife had some right or interest in the real estate, conveyed by reason of her having advanced the purchase money therefor, does not affect the question. The defendant had the legal title to the property (1 R. S. 728, § 51), and there was no resulting trust in favor of his wife (Bodine v. Edwards, 10 Paige, 504; Jencks v. Alexander, 11 Id. 619 ; Garfield v. Hatmaker, 15 N. Y. R. 475).
If, therefore, the injunction was subsisting when the defendant conveyed the property, the fact stated in his affidavit was no answer to the alleged contempt; and the real and only question, we think, is, whether the injunction was then in force.
In Cowdrey v. Carpenter (2 Robt. 601), this court held that a stay of proceedings upon a judgment merely suspended supplemental proceedings upon the judgment;
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and that it was not competent for the court or judge, pending such stay to dismiss the supplemental proceeding. In that case the stay was obtained by giving an undertaking upon an appeal from the judgment, and the court says the appeal suspends the plaintiff’s right to obtain the benefit of his lien, but does not take it away.
We have examined the other objections taken by the appellant, but do not find any of them to be well taken.
The order appealed from, was correct, and should be affirmed, with costs.
Curtis, J., concurred.
Cases cited
- Woodman v. Goodenough 18 Abb. Pr. 265 p. 410
- Graff v. Bonnett 25 How. Pr. 470 p. 410
- Squire v. Young 1 Bosw. 690 p. 411
- Hawes v. Barr 7 Rob. 452 p. 412