SICKELS v. HANLEY

SICKELS v. HANLEY. Supreme Court, Fourth Department; General Term, March, 1878. Supplementary Proceedings. An order to appear and submit to examination before a referee in supplementary proceedings may direct that the debtor appear before the judge on the Monday succeeding the close of the examination ; and notwithstanding his failure so to appear, a receiver may be then appointed, if a proper case is made by the examination. The debtor may also be punished as for contempt in failing to appear. George H. Sickels and others having recovered judgment against Daniel Hanley, obtained, on the usual affidavit that the debtor had property, &c., which he unjustly refused to apply, an order from the Hon. John G. Sawyer, county judge of Orleans County, which, omitting recitals, was as follows : “I do therefore hereby order that it be referred to A. C. H., Esq., of &c., to examine the said Daniel Hanley, and take his answer on oath concerning his property, and to reduce such answers and examination to writing ; and also to examine on oath such witnesses as may be offered by the respective parties, and reduce such examination to writing, and report such answers and examinations, and all his proceedings under and by virtue of this order, to me, with all convenient speed. And I do hereby appoint the said A. C. H. a referee in this action for the purpose aforesaid. “And I do also further order and direct the said Daniel Hanley to appear before the said referee, at his office, in &c., &c., on &c., at nine o’clock in the forenoon, to answer before said referee concerning his property as aforesaid; and for that purpose to appear before the said referee from time to time, as he shall direct and appoint. “And the said Daniel Hanley is hereby forbidden to transfer, dispose of, or in any manner to interfere with any property, money, things in action, or equitable interests belonging to him and not exempt from levy and sale on execution, until further order in the premises. “And I also further order and direct the said Daniel Hanley to appear before me at my office, in Albion, Orleans County, N. Y., on the Monday next succeeding the close of said examination, at ten o’clock A. M., for further order in the premises.” The defendant appeared before the referee and submitted to an examination. Upon the report of the referee, and the original order with proof of service, the plaintiffs .applied to Judge Sawyer, pursuant to the last clause in the order, at his office the Monday following the close of the examination, and obtained an order for the appointment of a receiver of the debtor’s property, and requiring defendant to execute an assignment to the receiver. Defendant moved to vacate this order on affidavits to the effect that on the last day of his examination he first retained counsel; that he was never to his knowledge served with any order to appear before the county judge, that none was ever served on him after his examination nor on his counsel, and that he intended in good, faith to oppose the appointment. Among the grounds assigned in support of the motion to vacate were: First. That the order Was improper and irregular in this, to wit: that the judge has no power or authority to grant or make an order requiring the defendant to execute and deliver to the receiver a deed of any real estate he may own. Second. That it is not proper to require the defendant to execute a deed of any real estate, as the receiver is ex officio vested with all the real and personal property of the debtor. Third. That the county judge had no jurisdiction to grant said order, because no proper notice of any application for the appointment of a receiver was ever served on the defendant or his attorney. The motion to vacate having been denied, defendant appealed to the supreme court. Meanwhile plaintiffs instituted proceedings to punish defendant as for a contempt of court, for refusing to execute a deed of assignment of his real estate to the receiver, and also to deliver to him certain personal property, consisting of a silver watch. In these proceedings an order was obtained, which, omitting recitals, was as follows: ‘" It is hereby ordered and adjudged that the said defendant, Daniel Hanley, is guilty of a contempt, in having willfully disobeyed the order of this court and of the judge thereof, dated the 21st day of May, 1877, appointing Clark D. Knapp receiver herein, and which did, among other things, direct and require the said Hanley to execute, acknowledge and deliver to such receiver a proper and valid assignment and conveyance of all his lands and estates, in not having obeyed and complied with the terms of said order, although such compliance has frequently been duly requested and required of said Hanley, and by refusing to deliver to said Knapp, as such receiver, a certain silver watch, the property of said Hanley, as appears by the report of the referee in the proceedings supplementary to execution herein, and which said watch was and is not exempt from seizure on execution, and that such misconduct and refusal tended to, and actually did impair, impede, defeat and prejudice the rights and remedies of the plaintiffs herein. “And it is further ordered and directed that the said Daniel Hanley pay the clerk of this court a fine of fifteen dollars for the indemnity and use of the plaintiffs herein, and the sum of fifteen dollars to the plaintiffs herein or their attorneys, as costs of these proceedings, and execute, acknowledge and deliver to Clark D. Knapp, as such receiver, a proper and valid assignment, deed and conveyance of all his lands and real estate, and especially the deed referred to in these proceedings, and heretofore presented to said Hanley by said receiver. “And that said Daniel Hanley be imprisoned in the common jail of Orleans county until he pays the fine hereby imposed, and execute, acknowledge and deliver the deed above mentioned, as above directed, and that a commitment issue to carry this judgment into effect.” From this order also defendant appealed to the supreme court. C. J. Church (Porter & Church, attorneys), for appellants, Cited, against the authority of the judge to make the order appointing the receiver: Code of Pro. §§ 244, 298; 2 Madd. C h. 232; Todd v. Crooke, 4 Sandf. 694; Barker v. Johnson, 4 Abb. Pr. 435; Dorr v. Noxon, 4 How. Pr. 29 ; Kemp v. Harding, 4 Id. 178; 2 Wait's Law & Pr. ; 11 Abb. Pr. N. S. 78; Scott v. Elmore, 10 Hun, 68; Bank v. Risley, 19 N. Y. 375; and against the regularity of the contempt proceedings: 4 Wait's Law & Pr. 178 ; Albany City Bank v. Schermerhorn, 9 Paige, 372; 2 R. S. 535 ; Reynolds v. Gilchrest, 9 Hun, 203; Sudlow v. Knox, 7 Abb. Pr. N. S. 411. Keeler & Salisbury, for respondent, Cited, in support of the order appointing the receiver, and directing defendant to execute the deed, &c.: Moak v. Coats, 33 Barb. 498; Chautauque Co. Bank v. Risley, 19 N. Y. 370; People ex rel. Williams v. Hulburt, 5 How. Pr. 446; 1 Code R. N. S. 75; Code of Pro. § 297; 9 N. Y. Leg. Obs. 254; Scott v. Elmore, 10 Hun, 68; Myers v. Janes, 3 Abb. Pr. 301; Smith v. Johnson, 7 How. Pr. 39; Todd v. Crooke, 4 Sandf. 694; Tyler v. Whitney, 12 Abb. Pr. 465; Tyler v. Willis, 33 Barb. 327; Johnson v. Pinney, 1 Paige, 646; Ellingwood v. Stevenson, 4 Sandf. Ch. 366; Rogers v. Patterson, 4 Paige, 450; People ex rel. Larocque v. Murphy, 1 Daly, 462; Milbank v. Crane, 25 How. Pr. 193; Myre’s Case, 2 Abb. Pr. 476; Webb v. Overman, 6 Id. 92 ; Beamish v. Hoyt, 2 Rob. 307; Bailey v. Lane, 15 Abb. Pr. 373; Lent v. McQueen, 15 How. Pr. 313; and in support of the contempt proceedings, in addition to some of the above: People ex rel. Hackley v. Kelly, 24 N. Y. 74; People ex rel. Day v. Bergen, 54 Id. 404; Union Bank of Troy v. Sargeant, 53 Barb. 422; S. C., 35 How. Pr. 87; Hilton v. Patterson, 18 Abb. Pr. 245; Code of Pro. §§ 244, 298; Reynolds v. McElhone, 20 How. Pr. 454; Rugg v. Spencer, 59 Barb. 383. [MAJORITY] The Court, at general term, held that the proceedings were regular, and affirmed the orders.