Rhodes v. Linderman

Martin, J. The basis of the alleged contempt was that the respondent had refused to obey the injunction order, in that on the 18th day of February, 1891, he received from the Mutual Belief or the Boehester Mutual Insurance Company the sum of $1,500 in money, and on the same day disposed of the same by paying the whole thereof to his wife. The order appealed from should not be disturbed on the ground that the facts as found by the learned county judge were not sustained by the evidence. An examination of the appeal book shows that the evidence was sufficient to justify the findings made. Assuming the facts as found, it becomes quite manifest that the" respondent was not guilty of contempt in receiving the check from the insurance company, indorsing it, and procuring the same to be placed to the credit of his wife at the bank. If, as was found, the. $1,500 thus credited and received upon the policy did not belong to the respondent, but was the property of his wife, there was no violation of the injunction order. In Beard v. Snook, 47 Hun, 158, this court held that, to support a conviction for contempt in disobeying an injunction restraining the transfer of property in proceedings supplementary to execution, it must be proved that the title to the property transferred was in the accused. The same doctrine was again held in Duffus v. Cole, (Sup.) 15 N. Y. Supp. 370. We think the order of the judge denying the appellant’s application to punish the respondent for contempt was proper, and should be upheld. We find no error in the award of costs against the appellant. Costs were in the discretion of the judge. On the application of the appellant the judge granted an order to show cause why the respondent should not be punished for contempt. On its return, on motion of the appellant, the judge referred the issue made by the respondent’s answer to a referee, in the face of the respondent’s objection. Thus the motion and reference were made and had on the appellant’s application. He failed in both. The court then allowed the respondent $10 costs of the motion for his discharge, the disbursements arising from the hearing before the referee in the proceeding for contempt, and $2 for serving notice of motion. Under these circumstances, we fail to discover any abuse of discretion on the part of the learned county judge. The order should be affirmed. Order affirmed, with $10 costs and disbursements. All concur.