Summary
In Myers v. Becker (95 N.Y. 486, 493), however, it was determined that section 4 must be construed in harmony with section 1, "and authorizes the precept mentioned only in cases where an execution cannot be issued. It does not, therefore, apply to a case where money has been ordered to be paid by a final judgment."
Summary of this case from Matter of KramskyOpinion
Argued March 13, 1884
Decided April 15, 1884
C.D. Adams for appellant.
D.C. Stoddard for respondent.
The judgment in the action of Hawley et al. v. Pierce et al. was not final. It adjudged that the assignment made by defendants Pierce and Haggerty to defendant Beckwith was fraudulent as against the creditors of the assignors, and that it was null and void; that the assignee should account for the assigned property which came into his hands which was found to be of the value of $3,000; that a receiver should be appointed of the property of the assignors in their hands or in the hands of their assignee; that from the proceeds of such property the receiver should first pay the costs of that action, taxed at $100.07; that from the remainder he should pay the plaintiffs in that action for their judgment against the assignors $178.35 and interest thereon from February 5, 1878, and that he report the remainder, with his proceedings, to the court for, and subject to its further order and direction.
The learned counsel for the appellants claims that the judgment was final and calls our attention to the case of Produce Bank v. Morton ( 67 N.Y. 199) as an authority for his claim. In that case it was held that for the purpose of an appeal to this court a similar judgment was final. It was so held under the Code then existing because there was a final disposition of the whole controversy between the parties. But it was not final for every purpose. It was not so far final that a judgment for an ascertained definite sum, or for any sum, could be entered and docketed against the defendants, or any of them. Before such a judgment could be entered or docketed further proceedings were needed. And such was the case here. The precise sum which the assignee was to pay and for which the judgment could be entered and docketed against him was yet to be ascertained, and no judgment requiring the payment of any sum could be entered, without further proceedings, in favor of any person. So after the entry of the preliminary judgment, which was certainly in some sense interlocutory, upon a motion made on behalf of the plaintiffs therein, an order was granted by the court appointing a receiver of the property of the assignors, and the assignee was ordered to account to the receiver for all the property of the assignors which came into his hands, and to pay and deliver to the receiver all of such property which had been found to be of the value of $3,000; and the receiver was ordered to pay out of the property received by him the two items specified in the judgment, and to report the remainder with his proceedings to the court; and by the same order a referee was appointed to take and state the account of the assignee and to determine what costs, expenses and charges, and disbursements, if any, were properly allowable to him to be deducted from the sum of $3,000. In pursuance of that order the receiver qualified and the referee took an account and made his report to the court, which then made a final order allowing the assignee to deduct from the sum of $3,000, certain claims allowed to him, and directing him to pay the balance — $2,610 — to the receiver. Until this final order was made, the sum was not ascertained which the assignee was required to pay, and no judgment for any sum of money could be entered or docketed against him. That action had then for the first time reached a stage in which a money judgment could be entered and docketed against the assignee, and then such a judgment could and should have been entered and docketed in favor of the receiver against him. The last two orders should have been attached to the prior judgment-roll, and a final judgment should have been thereon entered. ( Geery v. Geery, 63 N.Y. 252.)
The judgment thus entered and docketed could have been enforced by execution, and not by such process as was issued in this case. The rule is furnished by the Revised Statutes (Part 3, chap. 8, title 13), which both parties assume to have been in force at the time the process was granted. Section 1 provides, among other things, for punishing by fine and imprisonment parties to suits for the non-payment of any sum ordered by the court to be paid, "in cases where by law execution cannot be awarded for the collection of such sum." Section 4, under which the plaintiff seeks to justify this process, reads as follows: "Where any rule or order of a court shall have been made for the payment of costs or any other sum of money, and proof by affidavit shall be made of the personal demand of such sum of money, and of a refusal to pay it, the court may issue a precept to commit the person so disobeying to prison, until such sum and the costs and expenses of the proceedings be paid." This section must be construed in harmony with the prior provision cited, and authorizes the precept mentioned only in cases where an execution cannot be issued. It does not, therefore, apply to a case where money has been ordered to be paid by a final judgment, and so it has been uniformly held. ( Lansing v. Lansing, 4 Lans. 377; Strobridge v. Strobridge, 21 Hun, 288; Baker v. Baker, 23 id. 356; People, ex rel. Fries, v. Riley, 25 id. 587; Randall v. Dusenbury, 41 N.Y. Supr. Ct. 456; Matter of Watson v. Nelson, 69 N.Y. 536; O'Gara v. Kearney, 77 id. 423.)
The plaintiffs in the action in which the receiver and referee were appointed could acquire no right to a precept for the arrest of the assignee by omitting to enter their final judgment. They could not evade the statutes in that way. They or their receiver, having the right to enter the judgment and enforce payment of the same by execution, could not enforce the same by attaching the assignee for contempt in refusing to pay.
It follows that the precept for the arrest of the assignee was unauthorized; that he was illegally arrested; that the sheriff had no right to exact or take the bond, and that the defendant as surety thereto has not been made liable thereon.
The judgment of the General Term should, therefore, be affirmed, with costs.
All concur.
Judgment affirmed.