Schulte v. Anderson — 48 N.Y. Super. Ct. 133

Majority

p. 133

ALBERT SCHULTE, et al., Appellants, v. JAMES ANDERSON, Respondent.

Headnote

Contempt proceedings—payment by pa/rtyy to receiver, when cannot be enforced by.—Code Civ. Pro. §§ 14, 1241.

The receiver of the assets of a copartnership, appointed in an action for dissolution, accounting, etc., paid to defendant’s attorney on recovery of judgment, a certain sum on account thereof, out of the assets in his hands, and afterwards, on a new trial, plaintiff recovered judgment directing the repayment of said sum by defendant to the receiver, aud by the receiver to plaintiff, and that plaintiff have execution for the full amount of his judgment, which included said sum received by defendant.

Held, that the payment of said sum by defendant to the receiver could not be enforced by contempt proceedings, under subdivision 3, of section 14 and subdivision 2 and 4 of section 1241 of the Code of Civil Procedure. Further held,—it appearing that said sum was not actually received by defendant, but was expended by his attorney for disbursements in the action—that the denial of the motion, if made in the exercise of discretion, should not be disturbed.

Before Freedman, Russell and Arnoux, JJ.

Decided February 6, 1882.

Appeal from an order denying a motion to punish defendant for contempt. The facts are stated in the opinion.

E. P. Wilder, for appellants.

L. B. Bunnell, for respondent.

This action was originally brought to dissolve a partnership and for an accounting. Under »n order in the action Isaac Newton was appointed receiver, and as such collected certain moneys.. Upon the first trial defendant recovered judgment, and thereupon said receiver, out of said moneys, paid $81.07 to defendant’s attorney. ■ The general term of this court, upon appeal, reversed said judgment, and on the second trial judgment was pronounced in

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plaintiff’s favor. By this judgment it appears that the receiver had a balance in hand, after the payment of his fees, of $47, which sum with said $81.07, with interest, (which defendant was to repay) the receiver was directed to pay plaintiffs, and that plaintiffs should have judgment against defendant for the sum of $4,296.77, and have execution therefor.

This motion was made upon defendant’s failure to pay said moneys to said receiver, under the new Code, § 14, subd. 3, and § 1241, subd. 2 and 4, on the ground that by a final judgment defendant was adjudged to pay to an officer of the court a sum of money for the collection of which an execution could not be awarded, and which sum was not awarded in enforcing a contract or for the breach of a contract. The motion was opposed on affidavits that showed that defendant in fact did not receive the money, but that his attorney did, and he expended it for disbursements in the action; that this amount was included in the amount of the judgment in favor of plaintiffs for which execution was directed against defendant; and that defendant was unable to repay said moneys. The motion was denied.

In law the defendant received this money and is legally liable to repay the same.

The provisions of the Code above cited do not interfere with the issuing of an execution against defendant to recover back moneys paid on a judgment which has been reversed, for such moneys were received under an obligation to repay if the judgment were reversed, and, therefore, the above cited provisions of the code do not apply. It appears from the uncontroverted evidence of defendant’s attorney that plaintiffs have, as matter of fact, the right to issue execution therefor. To allow the punitive process of this court to be used to enforce the collection of a simple contract debt would be against that spirit of modern legislation and enlightened public sentiment that has abolished im

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prisonment for debt, and would convert this process from a punishment of wrong into an instrument for the collection of money.

Besides this, the application was addressed to the discretion of the court. The defendant’s excuse for failing to obey the order commended itself, we must presume, to the favorable consideration of the court. If the order were denied on that ground this court will not disturb it. •

The order appealed from must be affirmed with ten dollars costs.

Freedman and Russell, JJ., concurred.