Moynihan v. Devaney

Lehman, J. The judgment creditor on November 3, 1913, obtained a judgment for $539.53. Execution was duly issued upon said judgment and returned unsatisfied. Thereafter an order for the examination of the judgment debtor was made. The order contained the usual injunction forbidding the judgment debtor from transferring or making any disposition of any property belonging to him. Pursuant to this order the judgment debtor appeared and testified under oath that he was not the owner of or interested in the liquor business conducted in the premises at Eighth avenue and Fifty-fourth street, and that he managed the business solely for the benefit of the seven infant children of a deceased brother who had been the" real owner of the business. After the examination was closed a receiver of the property of .the judgment debtor was duly appointed and qualified but apparently obtained possession of no property of the judgment debtor. It appears, however, that about a year thereafter the judgment debtor made a bill of sale of this saloon in his own name for an expressed consideration of $2,500, and the bill of sale contains express covenants of. title and right to convey. Upon these facts appearing the judgment creditor obtained an order to show cause why the judgment debtor should not be punished for contempt in failing to obey the injunction order of the court and in making false statements on his examination in supplementary pro- • ceedings. Upon the return day the judgment debtor was given an opportunity to explain the discrepancy [348] between Ms statements at the examination that he was not the owner of the saloon business and the express covenants of title and right to convey in the bill of sale, and his only explanation was that he made the bill of sale for convenience, since the actual owners had no legal capacity to convey. The justice at Special Term refused to believe this testimony and held that the judgment debtor was in fact the owner of the property and had willfully suppressed this fact at his examination and had 11 willfully and premeditatedly evaded a statement of facts relating to his property ” and thereupon he fined the judgment debtor the amount of the judgment and costs of the proceeding and motion. In appealing from the order adjudging him in contempt the judgment debtor raises various points as to the amount of the fine and also as to the sufficiency of the evidence upon which the adjudication that he had sworn falsely upon his examination and that such false swearing resulted in actual damage to the judgment creditor is based. Inasmuch, however, as I think that the court was as a matter of law entirely without jurisdiction to punish the judgment debtor in this proceeding, these points need not be considered. There is no doubt that the judgment debtor cannot be punished for any disobedience of the injunction order obtained in the original order of examination, for the injunction continued only until the further order of the court and the order appointing the receiver constituted such an order. The learned justice at Special Term therefore correctly decided that the motion to punish for contempt must rest upon the failure of the judgment debtor to give true testimony at his examination as to the ownership of the saloon subsequently transferred to him. Assuming that this testimony given was false, yet the false swearing in [349] itself cannot lay the basis for an order punishing the witness for contempt. That point was directly determined by this court in Bernheimer v. Kelleher, 31 Misc. Rep. 465, and the learned justice at Special Term expressly recognized the binding nature of that decision. He decided, however, that, inasmuch as the judgment debtor swore that he did not own the property, he was guilty of a “ premeditated evasion of a statement regarding his property as well as suppressing the fact of its ownership when interrogated with respect thereto,” and that he may be punished for such evasion. The difficulty with that conclusion is that the judgment debtor certainly did not evade an examination nor contumaciously refuse to answer questions. On the contrary, he answered the questions directly and swore then as he does now that he did not own the property in question, and unless the court now has power to determine summarily that this statement is false, and to punish for such falsehood, I cannot see how the order under consideration can be sustained. It is urged that the decision of Matter of Becker v. Gerlich, 72 Misc. Rep. 157, is authority for this order. In that case, however, the judgment, debtor contumaciously refused to give testimony on his examination, either true or false, but shielded himself with the plea of “I don’t remember,” under circumstances which made those words equivalent to “ I refuse to answer,” and for such refusal he was punished. Where, however, the judgment debtor does answer the question directly, he has not refused to answer nor has he evaded the questions, and he cannot be punished for a contempt if he answers falsely. Upon the bare issue of perjury, he is entitled to a trial before a jury under the safeguards of the criminal law. The order punishing the judgment debtor for [350] contempt should therefore be reversed, with costs, and the motion denied. Order punishing the debtor for contempt reversed, with ten dollars costs and disbursements. Appeal from order denying motion to open the supplementary proceedings dismissed, without costs, but with disbursements. Guy and Whitaker, JJ., concur. Order reversed, with ten dollars costs and disbursements. Appeal dismissed, without costs, but with disbursements.