Charles D. Durkee & Co. v. Bonnell

BIJUR, J. The property consists of certain engines in a boat which had belonged to the judgment debtor. One John V. Kennedy “appeared” at the hearing on the motion to punish for contempt, his appearance being made by the same attorney as the judgment debtor’s. 791 The only claim he seems to have made must have been in the argument of this attorney, for there is nothing in the papers to indicate what claim he has, nor whether it was documentary or otherwise. Under these circumstances, it cannot be said that there is a “substantial ■dispute” as to the right of possession, under section 2447 of the Code .■of Civil Procedure. In the event of such a dispute, the parties would be relegated to an action by the receiver against the claimant. In the case at bar the court went too far in its effort to be fair, by providing that the judgment debtor should be held in contempt and •should turn over the property unless within a certain time the claimmit should establish before a referee named that he is the legal owner of the property. The court at Special Term, or through a referee, has no right to try that issue. Hexter v. Pennsylvania R. Co., 43 App. Div. 113, 59 N. Y. Supp. 453. But the error was really in appellant’s favor, since it afforded him an opportunity of proving that there was at least a “substantial dispute” about the title to the property. No such dispute appearing from the record, so much of the order as permitted this reference may be regarded as pure surplusage. The judgment debtor was properly adjudged in contempt on the record as it ■stands. Order modified, by striking out the provision as to the reference, and, as so modified, affirmed, with $10 costs and disbursements. All concur.