Holmes v. O'Regan

Hirschberg, J.: ' The acts for ■ which it is sought to punish the defendant, a judgment debtor, are the receiving by him of the sum of $1,900 from the United States government, after the appointment and qualification of the receiver, and his refusal to pay the money over to the1 receiver upon demand, The money was paid under a government contract which the defendant claims belongs to his wife, the business connected with it being transacted by him as her agent. Whatever suspicion may attach to the defendant’s claim by reason of the relationship and other considerations, it is clear that the title to the. money is fairly in dispute. The defendant executed a written bill of sale of his business to his wife some years before the dealings out of which this action arose, and all the direct evidence before the court is to the effect that since then she has' carried on the business, with her own property and means, the defendant acting as her agent merely. The defendant testified on his examination in the supplementary proceedings that the money in question belonged to her, and she now makes affidavit to the same effect, and also to the effect that the property for which the money has been paid and which was sold to the government was her property, purchased with her money. The order appealed from was made upon the ground that the title to the property could not be determined in a summary manner, and it may well be supported on that ground. (See Waldron v. Walker, 18 N. Y. Supp. 292; Rodman v. Henry, 17 N. Y. 482; Barnard v. Kobbe, 54 id. 516; Schrauth v. Dry Dock Savings Bank, 86 id. 390 ; Matter of Duryea, 17 App. Div. 540.) In some of these cases and others which might be cited it is held that the receiver’s remedy is by action. (See Broderick v. Archibald, 61 App. Div. 473, and cases cited.) But it is questionable in any event whether the defendant could •be punished for contempt in not paying the money to the receiver ■in the absence of any order requiring him to make the payment. (Tinkey v. Langdon, 60 How. Pr. 180.) Moreover, the respondent denies personal knowledge of the appointment of the receiver, and [320] no proof to the contrary appears.' The learned counsel for the appellants claims that the defendant was chargeable with contempt for violating the injunction order assumed to have accompanied the. supplementary proceedings.. If the defendant had been enjoined from collecting or interfering in any way with the money-in question, it-may be that the "court could have punished him for such disobedience, although the application is- not in terms addressed to-that offense. But there is no evidence in the record that such an injunction order was ever made,¡ and however common and usual-such an order may be, its existence cannot be assumed, especially as-the basis for a reversal: • ■ The cases, cited by the- appellants are -distinguishable on both-points. People v. Kingsland (3 Keyes, 325) and Jaelcson v. Murray (25 App. Div. 140) were cases of the violation of injunction orders relating to property which belonged to the-judgment debtors, while Matter of Weld (34 App. Div. 411) was-an appeal from' an-order directing the- judgment debtor to pay over to the receiver money which belonged to the former and was under his control. - The order should be affirmed. All concurred, Order of the-County Court of Kings county affirmed, with ten dollars costs and disbursements, ■ ■