Opinion
February, 1896.
Gayley, Baucus Fleming, for appellant.
George W. Carr, for respondent.
An examination of the testimony taken in these supplementary proceedings bears but one construction and leads but to one conclusion, that in transferring and paying out the moneys testified to and in executing and delivering the general assignment of his property by the defendant, after the service of an order in supplementary proceedings containing an injunction forbidding him from transferring or otherwise disposing of his property, he was and is guilty of contempt of court.
It was his voluntary act, and the plaintiff was injured by the same, since it had taken steps by which it would have procured a lien on the estate, real and personal, of the judgment debtor.
It matters not how slight that lien might have been; the judgment debtor could not assume the power to judge and determine the issue and thus violate a positive order of the court because, in his judgment, there was not enough to meet the creditor's claim.
He could not be the judge of this, but must leave it to be determined by the regular and orderly proceedings.
The case of Canda v. Gollner, 73 Hun, 494, we think, is directly in point. See 117 N.Y. 297; 130 id. 185, 186.
It is claimed, however, that there was no contempt, because in a similar proceeding on March 29, 1894, in which Ellen M.B. Connolly was plaintiff, and this defendant was the defendant, a receiver was appointed, but it is declared and not contradicted that no bond had been filed in the office of the clerk of the city and county of New York as required by statute, and which requires that before he, the receiver, enters upon the execution of the trust "he shall execute to the People of the State of New York a bond with sufficient sureties, to be approved by a justice of this court * * * and file said bond with the clerk of the city and county of New York, and that such receiver, upon filing such bond, be invested with all the rights and powers as receiver, according to law, and the receiver's appointment is not, therefore, complete until his bond is filed."
The receiver's title to real estate is at most a qualified title in the nature of a security for the plaintiff in the judgment and did not exhaust the title of the judgment debtor. Subject to the rights of the receiver to resort to the land to pay the judgment, the title remains in the judgment debtor. Moore v. Duffy, 74 Hun, 78, 80.
The defendant was, therefore, guilty of contempt, and the order appealed from is reversed, with costs, and the proceeding remitted to the Special Term to fix the amount of a fine sufficient to indemnify the plaintiff for its loss and damage.
The Special Term justice may allow as an item of expense a reasonable fee to the plaintiff's attorney in these proceedings. People ex rel. Garbutt v. Rochester State Line R.R. Co., 76 N.Y. 294, 301.
VAN WYCK, Ch. J., and SCHUCHMAN, J., concur.
Order reversed, with costs, and proceeding remitted to Special Term to fix amount of fine.