THE PEOPLE ex rel. WALTERS against CONNER

THE PEOPLE ex rel. WALTERS against CONNER. Supreme Court, First • District; Special Term and Chambers, May, 1874. Contempt.—Jurisdiction oe Maeine Couet.—Commitment.—Habeas Coepus.—Motion Papees. A commitment for contempt in not delivering possession of property pursuant to order of court, must show on its face that the person committed had possession or control of the property. On habeas corpus to discharge the prisoner from detention under a commitment which is defective in this respect, the court can not supply the defect by resorting to the papers on which the original order to give possession was made. On execution from the N. Y. marine court, a marshal took chattels, one of which his men- pawned, and the auctioneer, employed by the marshal, redeemed it, and refused to deliver it without being reimbursed. Held, that the marine court had not power to determine the right to possession on summary application without action. After a commitment has been adjudged void, on habeas corpus, the papers on which it was granted are functus officio; and a new motion should be made if a new commitment is sought. . Habeas corpus. In the case of Lawton v. Wells, in the marine court, judgment for plaintiff was entered by default, and execution issued to Marshal Toplanyi, who levied upon chattels of the defendant, the judgment debtor, part of which were deposited with Richard Walters, auctioneer. The other part, consisting of a watch and chain, were pawned by an employee of Toplanyi, and subsequently redeemed by said Walters. The judgment and execution were set aside, by a consent of the attorneys; and an order of the court entered thereon. By order of said court, dated March 21,1874, it was directed that “Marshal Toplanyi and all persons holding for him or having in possession the goods and property by him taken . . . respectively deliver up the said' goods and property to the defendant on demand.” These orders were served on Richard and Charles Walters, who delivered up all the chattels except the watch and chain, upon which they claimed a lien for moneys paid in taking them out of pawn. On orders to show cause why said Richard and Charles Walters should not be punished for contempt in refusing to return the goods and chattels, an order was made on April 15,1874, notwithstanding the motion was resisted on the ground of said lien, adjudging both Charles and Richard Walters guilty of contempt, and ordering that each pay to the clerk of the court a fine of one hundred dollars for the use of defendant, and fifty dollars costs to his attorney, and that they be imprisoned until they and each of them pay the said fines and costs, and until they restore and deliver to said defendant the goods and property referred to in the order of March 21,1874, and that a commitment should issue to carry that adjudication into effect. A commitment was thereupon issued, under which the relators were taken into custody. They were discharged on habeas corpus, the court holding that the commitment was defective on its face, among other things, in not stating definitely the property to be re-, turned.. A second commitment which attempted to cure these defects, was thereupon issued out of the marine court, and the relators were again taken into custody. A second writ of habeas corpus was then sued out. Ambrose Monell and Lewis Johnston, for the relators : I. It does not appear that the relators or either of them have or had the watch and chain in possession or control ; nor that the possession is or was joint. II. The punishment inflicted is joint, and neither relator can be discharged until a compliance by both with the terms of the' commitment. III. The offense charged in the commitment did not constitute a contempt within the meaning of the statute. IV. - The court had no jurisdiction to punish the relators for the offense charged. Wm. M. Gallaher, for party in interest, and Henry W. Bookstaver, for the sheriff. The marine court had jurisdiction, and it having decided that a contempt had been committed, this court could not go behind the return and try that question over again. [MAJORITY — Donohue. J.] Donohue. J. J.—In this case the. relators are before this court on habeas corpus, &c. The return and proceedings under it show these facts ; that in an'action, wherein one Lawton was plaintiff and one Wells defendant, pending in the marine court, that court made an order that a person not now before the court, and all persons holding for him, deliver up certain property to the defendant in the suit named, among other things a watch ; it is further alleged that the order was served on the relators, and they refused to give up the.watch, and the court thereupon adjudged Walters et dl. in contempt, and imposed a fine, &c., on them. These parties have been before the court before, in this matter, on a commitment which has been held bad, on which occasion the court intimated to the respondent’s counsel that the writ was in addition bad, in failing to show such a state of facts as gave the marine court jurisdiction of the persons of the relators ; and the case comes back here with this same defect. Now that this ease may at least be put on grounds that the respondent may review, and the case not left to come here again, I hold that the commitment nowhere alleges that the relators had possession of the watch or were in a position to deliver it. The respondent attempts to get over this by going back of the return, and referring to the papers used on the motion, ending in the order of commitment. It is only necessary to say that the writ must show a valid cause of commitment on its face, and this court can not go behind to sustain or discharge it. On its face it appears that the court issued a writ to some person named, and all others holding for him and them, and, without finding or holding that the relators held for the named person, or held at all, proceeded to commit them. What power the court had to order the persons named to deliver, if they had the watch, does not appear Jn the commitment, nor is it alleged therein ; but beyond this, had the relators been named and then possession found, I find no law to sustain the commitment. I can not conceive what right the marine court has in a suit between A. and B., to ask C. to deliver what he has received from D. Had it the power to issue injunctions and appoint receivers, the extent of power here exercised would, in my judgment, be excessive. So much for the case as it appears on the writ. If the respondent is permitted to go behind it, then the facts appear that on execution from the marine court, a marshal took the watch, and. his men pawned it, the relators redeemed it, and held it for what they paid; these facts may present merits in a suit between the owner and the holders of the watch, but that is for a jury to pass on, and not for the court to determine, on motion in a cause between these parties. On the commitment I find no contempt charged; and on the facts attempted to be put in to sustain it, no jurisdiction to determine the relators in contempt. In addition, I do not think the use of the old motion papers to make a new.order and commitment justified ; they had done their work, and a new motion should have been made. Relators discharged.