PER CURIAM. The nature of the- action, the form of the judgment, the power of the court to appoint a receiver, are all fully discussed- in the opinion herewith handed down upon the appeal from the judgment. The single question remaining is as to the right to enforce the judgment by punishment as for a contempt. In disposing of this question little need be added to the able opinion of the judge from whose order this appeal is taken.
Most of the cases cited by appellant as inclining to a contrary view have been cases' under the old Code, or where the direction was in effect a direction to pay to a party for his own benefit, in which cases an execution to enforce the judgment may be issued. We think that under the true construction of subdivision 4 of section 1241 of the Code the right is given to enforce the terms of the judgment by proceeding as for a contempt.
This section disposes, it seems to us, of the main argument made by appellant, that these proceedings cannot be resorted to upon judgments where the act directed to be performed requires the payment of money, or where an execution upon such-judgment can be issued, because by the express terms of such section a judgment such as this, requiring the payment of money to an officer of the court, may be enforced by contempt proceedings, although an execution may issue, and even simultaneously with the issuing of such execution.
The only question presented which, as we have already stated, has been disposed of on an appeal from the judgment, is as to whether the receiver appointed by the judgment in this action is an officer of the court, within the meaning of such subdivision of section 1241 of the Code. This, we think, needs no further discussion but a statement of our conclusion that such a receiver is clearly an officer of the court, within the meaning of that section.
It Is true that this section excepts cases where money is due upon contract. This action, however, was for 1031 a breach of trust in wrongfully misappropriating property of a corporation of which the defendant was a trustee. The act was grand larceny. Section 541, Pen. Code. A breach of trust which arises out of contractual relations is nevertheless a tort. Many breaches of trust arise out of the violation of express or implied contracts; for example, breaches of trust committed by agents, attorneys, and the like.
The judgment in this action was for a tort, and the defendant is therefore liable to imprisonment.
We think, therefore, that the judgment in this case having required the payment of money to an officer of the court, whether an execution could or could not have been issued upon such judgment, it could be enforced by contempt proceedings under section 1241 of the Code, and that for these reasons, in addition to those stated by the judge at special term, we think the order appealed from should be affirmed, with $10 costs and disbursements.
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