People ex rel. Keiley v. Spier

Daniels, J. The judgment on which the proceedings were instituted was recovered in an action brought by the relator to determine the title to certain moneys received by Dusenbury, from the chamberlain of the city of Hew York, and for the recovery of such moneys. These moneys were affected by conflicting claims and one of the objects of the action was to secure a determination of those claims, and to establish the right of the plaintiff as receiver to the moneys. It was prosecuted in the form of an action in equity. The relief demanded by the complaint was entirely consistent with the case it presented, that was, that the plaintiff should be adjudged entitled to, and to be vested with, the property, estate and credits of the judgment debtor; that his preceding assignment should be adjudged fraudulent and void as to his creditors; that the chamberlain of the city of Hew York should account to him for the debtor’s moneys in his hands, and that he should have judgment against the defendants for the moneys received by them. The relief awarded was substantially that which was demanded. The assignment was set aside as fraudulent and a recovery was had in the relator’s favor for the amount of the judgment debtor’s money in the hands of the defendant Dusenbury. And upon this judgment, proceedings for its collection were taken against him under the provisions of the act abolishing imprisonment for debt. The complaint in the receiver’s action neither set forth in terms nor in any manner alluded to any contract existing between himself or the judgment debtor and the defendant Dusenbury, either as a basis of the liability desired to be enforced and maintained or otherwise. It was, on the contrary, an action to set aside an assignment made by the judgment debtor and for an accounting concerning the moneys received by the respective defendants. The defendant Dusenbury had received such moneys claiming to be entitled to them under the authority of the assignment. But it was held that he had no such right, and that the plaintiff, as receiver, should recover the money. [84] By the provisions of the non-imprisonment act a party can proceed against the debtor under it where he has a demand upon which, according to the preceding provisions, the debtor cannot be arrested or imprisoned (3 R. S. [5th ed.], 126, sec. 6). And the cases in which by such preceding provisions the debtor cannot be arrested or imprisoned are those where the suit shall be brought “ for the recovery of any money due upon any judgment or decree founded upon any contract, express or implied, or for the recovery of any damages for the non-performance of any contract ” (Id., sec. 1). The prohibition against arrest and imprisonment contained in this section was not confined to what were understood to be actions at law for' the recovery of moneys due upon or for the breach of a contract, but it also included actions in courts of equity. And where they were founded upon an express or implied contract, there the debtor, according to the express language of this section, could not be imprisoned upon any execution issuing upon the decree. It was not necessary under these provisions of the statute that a contract, should be averred as the foundation of the plaintiff’s action in order to exonerate the defendant from arrest and imprisonment. But it was sufficient for that purpose that the suit should be for the recovery of money due upon contract, express or implied. And from the facts imperfectly stated in the complaint, as they were, it could readily be seen that an implied contract existed in law for the payment of the moneys received by the defendant Dusenbury to the receiver in case he had no right to receive and hold them upon the ground claimed by him. As the facts turned out, the moneys were received by the defendant Dusenbury without right, and consequently for the use of the receiver. And the law therefore implied a promise against him to pay them over, as the judgment directed that to be done (Admrs. of Dumont agt. Carpenter, 3 John., 183; Buell agt. Boughton, 2 Denio, 91; Cobb agt. Dows, 6 Seld., 335, 341). The action was not one in which the defendant could be imprisoned upon an exe [85] cufcion, for the reason that it was an implied contract against him, and. therefore he conld be proceeded against under the non-imprisonment act. The action might have been prosecuted in a different form, but, as it was not, that fact cannot affect the plaintiff’s right to maintain this proceeding. Ho wrongful act was alleged as the foundation of the action beyond^ the circumstances showing that the money had been secured without any actual right to it. And the judgment proceeded upon the same theory so far as it was recovered against Dusenbury. It was simply that the plaintiff recover against him personally, with costs, the sum adjudged to be in his hands. All conformed to the theory that the liability enforced was for money received by him under the claim of authority to act under the assignment. He had no such authority, and, when the assignment was set aside as fraudulent, it followed that he must account for and pay. over the money he had received. And the law implied a promise against him that he would do so. The warrant was issued against the defendant upon an affidavit, and his own examination, in proceedings supplementary to execution, taken on the judgment. He, himself, made an affidavit controverting certain facts contained in the affidavit presented on the part of the plaintiff. The return does not show that he then, or at any previous time, objected to the admissibility of his own examination as evidence of the facts required to be established to support the proceeding. But afterwards it was objected that this examination could not be used for that purpose, because of the provision contained in the Code of Procedure that his answers at that time given should not be used against him in any criminal prosecution or proceeding (Sec. 292). But, although proceedings under the non-imprisonment act may be to some extent punitory in their nature, they are still not in the character known as criminal. Their object, primarily, is the enforcement of civil remedies. And, in this instance, they were carried on for the purpose of collecting a debt, not to punish [86] the defendant. The case of People agt. Underwood (16 Wend., 546) arose upon an indictment, and, for that reason, did not require the examination to he rejected as a basis of the present proceeding. Where the object sought is the punishment of a debtor for an offense committed by him, this provision of the Code requires the examination to be rejected. But it proceeds no further than that. And no sound reason can be discovered for allowing the prohibition any greater latitude or effect. For the purpose of collecting his debt, the creditor is entitled to a full and complete discovery of his debtor’s affairs under oath. And he. may use answers given by him as permanent evidence to support the enforcement of any civil remedy afforded by the laws of the State to secure that end. That such a proceeding is not criminal was held in the case of Noah agt. De Forest (5 Hill, 605), because the .debtor could release himself from it by merely paying the debt. And the present proceeding was subject to the same provisions of the statute which provided for a discharge upon payment, and by four other different modes of proceeding designed to promote the remedy of the creditor and to enable the debtor to relieve himself from it (3 R. S. [5th ed.], 128, sec. 15). The case of Gillespie agt. Thomas (15 Wend., 463) arose upon an arrest by warrant of criminal nature,'and for that reason it has no weight as authority in the defendant’s favor. The proceeding should not have been, as it was, dismissed, but it should have been heard and disposed of upon its merits. For that reason the order made should be reversed and further proceedings • directed before the judge having cognizance of them.