Lowenthal v. Hodge

CLARKE, J. : ■ This is an appeal from an order .of the Special Term made upon the return of an order.to show cause why John "Weir and Thomas M."Smith Should not be required to disclose the repository in which 42,000 shares of the capital stock of the Hevada-Utah Mines and Smelters Corporation is deposited, and why they should not be 1 required tó bring the same back into the State .of New York and surrender the same to the,sheriff of the county of New York, or place the same in some place designated by the court, and why théy should not be punished for contempt of this court in endeavoring to rescue and take the said stock away from the shériff of the county of New York, and for hindering, impeding, delaying, defeating and impairing tlie rights of the plaintiff in this action, and'for removing-said stock from the State and from the jurisdiction of the court. The relief asked in this order to,,show cause was denied without prejudice to its renewal upon the determination of the action brought by the sheriff. The subject-matter of this proceeding was before us and discussed and. decided in the opinion of Mr, Justice Scott handed down June twenty-first. (120 App. Div. 304.) It was held that the original levy was'valid, and that the attorney in taking the stock away had been guilty of a contempt. The order made thereon required that the parties there proceeded against should return the stock to this State, and, if within the jurisdiction of the court,, be required to deliver the said stock into the custody of the sheriff. . . As we have decided that the attorney who' actually advised and participated in the removal of this stock committed a contempt, it follows that Weir, who was his principal and under whose directions he proceeded, "was likewise guilty, and his "own affidavit shows a participation in the transaction which removes the-question from the realm of doubt. • The order appealed from was improper because it merely put off the determination of this matter until after, the conclusion of a suit in equity brought in aid of the attachment". The effect would be to postpone the enforcement pf a clear-right and make it dependent upon a long and unnecessary litigation. The plain tiff" has recovered a judgment for upwards of. $56,000, and as the defendant is. a non-resident the judgment depends upon [795] the attachment, and execution will only run against the attached property. Therefore, the withdrawal of the attached property was an act directly hindering, impairing, impeding and delaying the plaintiff and his lights growing out of the judgment. The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, to the extent of . requiring tlie respondent John Weir to return the said shares of stock to this' State, and, if within the jurisdiction of the court, to deliver the same into the custody of the sheriff 'within ten days after the entry of the order herein, or within that time deliver to the sheriff of the county the amount of the judgment, $56,130.62, with interest thereon from the dace of its entry, with the amount of the sheriff’s fees, the same to be held by the sheriff in lieu of said - shares of stock, and in default thereof plaintiff to be at liberty to make such further motion to the Sjiecial Term as he may be advised. Ingraham, McLaughlin, Houghton and Lambert, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, to the extent stated in opinion.