In re Backus , 86 N.Y.S. 638 ( 1904 )

Laughlin, J. (dissenting) :

The judgment upon which supplementary proceedings were instituted was recovered in the Supreme Court in the first district. The judgment debtor resided in Rensselaer county. A transcript of the judgment was docketed in that county and an execution duly issued to the sheriff thereof was returned unsatisfied. Thereupon the supplementary proceedings were instituted before the county judge of Rensselaer county, who made an order requiring the judgment debtor to appear before a referee for examination. She appeared before the referee, but refused to answer questions and to obey the directions- of the referee in that regard. The judgment creditor then moved upon an order to show cause, returnable in the first district, for an order punishing the judgment debtor for contempt. There can be no question but that the moving papers show that the judgment debtor was guilty of contempt. The order adjudging her in contempt should, therefore, be sustained, unless her contention that the motion could not be made in the first district is well founded.

By virtue of the provisions of section 2434 of the Code of Civil Procedure the supplementary proceeding might have been instituted either before a judge of the Supreme Court or the county judge of Rensselaer county. It is not a proceeding in court and could not be instituted by a court order. (Douglass v. Mainzer, 40 Hun, 75 ; Matter of Wright, Peters & Co., 73 App. Div. 77.) Being a statutory pi’oceeding, the intent of the Legislature that the examination shall be had in the county where the judgment debtor resides or transacts business must be given full effect, even though. the proceeding is instituted before a justice of the Supreme Court in another district. (Peck v. Baldwin, 58 Hun, 308 ; affd., 131 N. Y. 567.) The judge granting the order for the examination of the judgment debtor was authorized by section 2442 of the Code of Civil Procedure to provide that the examination should be had before a referee designated in the order, as was done in this case. The order was duly served on the judgment debtor,, and her appearance before the referee was pursuant to the requirements thereof. Section 2457 of the Code of Civil Procedure provides, among other things, that a judgment debtor who, under such circumstances, “refuses or without sufficient excuse neglects to obey * * * an oral direction, given directly to" him by a judge or referee, in the course of the special proceeding, * * * may be punished by the judge, or the court out of which the execution was issued, as for a contempt.” Ho proceeding for the punishment of the judgment debtor was instituted before the county judge. The judgment creditor has proceeded upon the theory that this provision of the Code authorizes the court put of which the execution was issued to entertain the contempt proceeding. Under the Code of Procedure, which contained no special provision giving the court concurrent jurisdiction to punish in such cases (Code Proc. §■ 302),- it was held that the Supreme Court at Special Term possessed inherent power to punish for contempt where the supplementary proceeding in which the contempt was committed was instituted before a county judge. (Tremain v. Richardson, 68 N. Y. 617 ; Lathrop v. Clapp, 40 id. 328 ; Wicker v. Dresser, 13 How. Pr. 331.) There can be no question, therefore, now', especially in view of this express statutory provision in section 2457 of the Code of Civil Procedure, but that the court out of which the execution was issued has jurisdiction to punish for the contempt.

The appellant, as I understand her counsel’s argument, concedes that the court has concurrent jurisdiction with the county judge to punish the judgment debtor, but she contends that the supplementary proceeding is a special proceeding pending in Rensselaer county and that the motion, if made in the- Supreme Court, must, therefore, be made in the judicial district embracing that county. . I find no warrant for this contention either in the Code "or in the decisions of the courts. Prior to the Code of Civil Procedure proceedings supplementary to execution were deemed special proceedings in the action and motions to punish for a contempt committed in such proceedings were properly entitled in the action. (Erie Railway Co. v. Ramsey, 45 N. Y. 637 ; Wright v. Nostrand, 94 id. 31.) These remedies are now declared to be special proceedings (Code Civ. Proc.. § 2433),.but where the execution is issued out of the Supreme Court no direct appeal from the order is granted and it may only be reviewed by the judge or by an application to the Supreme Court.

■ It is unnecessary to consider the purpose, of the Legislature in declaring these remedies special proceedings, for it is clear that they are not independent special proceedings. They are special statutory auxiliary proceedings in the action in aid of the purpose of the action which is not merely to obtain a judgment but to have it satisfied; and the action itself continues until the judgment is satisfied (Smith v. Tozer, 42 Hun, 25 ; Matter of Crane, 81 id. 96 ; Moschell v. Boor, 66 id. 557 ; 50 N. Y. St. Repr. 238 ; First National Bank v. Yates, 21 Misc. Rep. 373 ; First National Bank of Canandaigua v. Martin, 49 Hun, 571 ; 15 Civ. Proc. Rep. 324.) A receiver appointed in supplementary proceedings must also be appointed where the judgment debtor resides, but this is because such appointment is made by the judge before whom the proceeding is returnable and the court is not authorized to make the appointment, and the proceeding, if returnable before a justice of the Supreme Court, must be returnable before a justice in the district where the debtor resides or regularly transacts business. (Code Civ. Proc. § 2464 ; Merrill v. Allin, 46 Hun, 623 ; Gildersleeve v. Lester, 69 id. 344.) The receiver, however, then becomes an officer df the court and is subject to the direction and control of the court and not of the judge by whom he is appointed. (Code Civ. Proc. § 2471.) Motions then, as I understand it, by or against the receiver, are in the action, and the judgment debtor may, by an order of the court made in the action, be compelled to deliver and transfer personal property to the receiver. The contempt proceeding itself, when instituted before the court, at least, is in the nature of an original special proceeding in the action and not a proceeding in the supplementary proceeding. (Moschell v. Boor, supra ; People ex rel. Grants v. Warner, 51 Hun, 53 ; affd., 125 N. Y. 746 ; Gibbs v. Prindle, 11 App. Div. 470 ; Erie Railway Co. v. Ramsey, supra.) I think this clearly appears by the provisions of section 2273 of the Code of Civil Procedure regulating the procedure, in contempt cases which are as follows: “ An order to show cause may be made, either before or after the final judgment in the action, or the final order in the special proceeding. It is equivalent to a notice of motion, and the subsequent proceedings thereupon are taken in the action or special proceeding, as upon a motion made therein.” The special proceedings to which this section relates are, I think, independent special proceedings and not special proceedings, in an action. In supplementary proceedings there is, strictly, speaking, no final order; blit there is- in all independent special proceedings. I' see, no. greater hardship in the judgment debtor answering a .proceeding to punish for contempt before the court in the district where the. action is triable, than in. appearing upon the trial and upon other motions in the action which must necessarily be made there. Section 769 of the Code provides that motions upon notice in an action in the Supreme Court triable in the first judicial district must be made there, and the section contains the following exception: “ But this section does not apply to a case where it is specially prescribed by law that a motion may be made in the county where the applicant or other person to be affected thereby or the attorney resides.” As has been seen, there, are special provisions prescribing where the judgment debtor and a third party may be examined in supplementary proceedings (Code Civ. Proc. § 2459), and where the motion for the appointment of a receiver must be made (Code Civ. Proc. § 2464), but I find no provision applicable to actions in the Supreme Court, either requiring or authorizing the making of a motion for the punishment of a judgment debtor by the court for contempt, either in the,- county where she or her attorney resides or elsewhere other than pursuant to the general réquirements of section 769. In Graves v. Scoville (12 Civ. Proc. Rep. 165 ; affd., 102 N. Y. 676), where a judgment was recovered in the City Court of Brooklyn, it was held that an order made by one of the judges of that court requiring a third party who resided in the county of Hew York to appear and be examined before a referee in Hew York was valid. It follows necessarily, by virtue of the provisions of section 2457 of the Code of Civil Procedure, that the City Court of Brooklyn could have punished the witness for any contempt of court committed before the referee in another district. If the contention of the appellant be sustained, this is a greater power 'than is possessed by the Supreme Court,- for the Supreme Court in the second district could not, according to the view of her counsel, punish a contempt committed in supplementary proceedings in . another district, even upon its own judgment. If the execution had been issued out of the County Court, upon a transcript filed in another county, the court having power by virtue of the pro- ■ visions of section 2457 to punish for a contempt, the motion might be made in the County Court where the action was tried even though the examination of the judgment debtor was had in another judicial district. Here the County Court would be exercising greater power than it is claimed is possessed by the Supreme Court. It is, of course, clear, both under the Constitution and the Code of Civil Procedure, that the County Court in each county is a separate and distinct court. It must be borne in mind that this is not a contempt proceeding merely to avenge the dignity of the court, but to enforce the rights of the plaintiff in the action. What he desires is the collection of his judgment. The supplementary proceeding was instituted in furtherance of that end. The primary object of the rights and remedy of the judgment creditor, which the contemptuous conduct of the judgment debtor tends to impede or defeat (Code Civ. Proc. § 2266), is to have her property applied to the payment of his judgment. In this he is entitled to the aid of the court. The jurisdiction which the court has acquired over the defendant in the action and the judgment constitute the basis for the proceedings supplementary to execution. When it' is necessary to make an application to the court, as-distinguished from the justices of the court, I fail to find any authority or see any good reason for making the application elsewhere than in the judicial district where the action is pending. I think that the orderly administration of justice requires that when an application is made to the Supreme Court for the punishment of a judgment debtor for a contempt committed upon an examination in proceedings, supplementary to execution upon a judgment of that court, it should be made in the judicial district in which the action is triable.

If these views are correct, it follows that the order should be affirmed, with ten dollars costs and disbursements.

O’Brien, J., concurred.

Order reversed, with ten dollars costs and disbursements, and motion dismissed, with ten dollars costs.