Goldreyer v. Shatz

BISCHOFF, J. The order for the delivery of property by the judgment debtor to the receiver was made upon the former’s default, after notice (Code Civ. Proc. § 2447), and the question of title in the judgment debtor to the property directed to be delivered was then determined. Relief from the default not having been asked, that order was conclusive, and any further inquiry into the circumstances, as an act of grace toward the judgment debtor, upon the motion to enforce the order by contempt proceedings, within the discretion of the court to withhold. Hence the order appealed from, directing the debtor’s punishment, cannot be assailed upon the ground that a question of disputed ownership was summarily determined. While the order directing delivery to the receiver was in form a court order instead of a judge’s order, and so open to technical objection upon direct review (Fiss v. Haag, 75 App. Div. 241, 78 N. Y. Supp. 1), it was not to be held void because of its mere form (Phinney v. Broschell, 80 N. Y. 544), and cannot be reviewed upon an appeal from the order in contempt-proceedings (In re Van Ness, 17 App. Div. 581, 45 N. Y. Supp. 576). This appeal, so far as it proceeds upon technicalities of practice, is therefore without foundation, and, upon the merits, it appears that the discretion of the court below was prop [341] erly exercised, in view of the very strong suggestion of bad faith on the part of the judgment debtor which the record imports. Order affirmed, with $10 costs and disbursements. All concur.