Fromme v. Jarecky

Daly, P.. J. The City 'Court having refused to punish for-contempt the defendant, a. judgment -debtor, for alleged disobedience of an injunction contained in the order for Ms -examination in supplementary proceedings and also for Ms -refusal to- deliver property -to the receiver appointed in such proceedings, the- plaintiffs appealed to the General Term,, which affirmed' the deMal of the motion to punish for .contempt add now -appeal from such affirmance to this court. So -far as the alleged contempt in disobeying the injunction order is concerned, , the decision of the City Court cannot be disturbed, since it went upon a question of fact, namely, whether the money, $42, which the judgment debtor drew out of bank ■after the service of the order for bis examination was part of. his earnings for Ms personal services rendered within sixty days of the service of the order and was necessary for the support of his family. Code, § 2463. He stated what his circumstances were and for what the money was used and Ms testimony was not merely to conclusions, as appellants suggest. We have read the evidence and it is sufficient to sustain the learned chief justice, of -the City Court in Ins finding. With reference to the alleged contempt in refusing to turn over property, on the' demand of the receiver, a question of practice was presented which was correctly decided. It appears that the receiver served a copy of the order appointing' him upon the judgment debtor and made. demand of certain property, which was refused. The order did not specify any property nor direct the judgment debtor to make delivery of any.' So be was not in contempt for. disobeying the requisition of the .receiver. ■ The latter should have procured, on proper proofs, an order requiring the judgment debtor to deliver the specific property and served it upon the debtor, following it by a proper demand for the article specified in it. A refusal to comply with that order would have constituted a contempt. McKelsey v. Lewis, 3 Abb. N. C. 61-64. “ The order appointing the receiver directed the debtor to assign [485] and convey Ms lands and real estate, but it contained no direction to the debtor to surrender its possession. He could not be held in contempt for omitting or for refusing to do what had not been commanded or required of him.” Tinkey v. Langdon, 60 How. Pr. 180-183, “ In refusing to deliver Ms property to the. receiver, the debtor has not' disobeyed an order of the court, - for none has been made requiring him so to deliver it. He refused to do that which it was Ms 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 prerequisite.” Watson v. Fitzsimmons, 5 Duer, 629-631. It further appears that among the articles demanded by the. receiver were a horse, carriage, sleigh, harness, and so forth, which had been conveyed by the judgment debtor to his brother-in-law and of which the judgment debtor was allowed by the latter to have the use, if not the possession. For nondelivery of that property the court will not attach the judgment debtor, but will leave the receiver to his remedy by action, in which the title-can be tried. Serven v. Lowerre, 3 Misc. Rep. 113; Gallagher v. O’Neil, 3 N. Y. Supp. 126. Order affirmed, with costs. Me Ad am and Bischoff, Jj., concur. Order affirmed,; with costs.