Whitman v. Haines , 21 N.Y. St. Rep. 41 ( 1889 )

Brady, J.

The learned justice who directed a reference in this proceeding, upon the coming in of the referee’s report, and upon proper application therefor, confirmed it, with one exception. He directed that the fine imposed be stricken out, and thus relieved the appellant from that burden. He expressed himself upon the subjects involved in this appeal as follows:

“Barrett, J. Whitman v. Haines, and 4 other actions. 1. The plaintiffs having proceeded by order to show cause, the caption of the actions was properly preserved. It is only where the proceeding is by attachment that the respondent’s views are sustained by the Code and the authorities.

“2. The order of the 26th of February, 1886, was served upon Schaffer, and was binding upon him. The deputies are servants of the sheriff, and in law they are considered but one officer. Allen, Sher. 81,86; Pond v. Leman, 45 Barb. 154.

“3. The order was for the benefit of the plaintiffs, and upon its service compliance was required without any special demand. It directed payment to a trust company, and the contempt consisted in not making the payment to the trust company, as directed. Besides, Schaffer complied in part, and thus recognized his duty under the order. And he gave a false reason for non-compliance generally, but a reason which had no relation to the validity of the order, or the sufficiency of the service, or to any question of demand. It was simply a case where an officer of the court, having moneys in his hands, collected under process, is required to bring such moneys into court. Upon service of such an order, and proof of non-compliance, the officer is in contempt.

“4. Upon the merits there can be no doubt that the referee’s conclusions are correct. Schaffer received the moneys from Orager and Bookman, and has failed to establish their payment to Davidson. It is not necessary to analyze the testimony upon this head. It could not be done without reflecting seriously upon Schaffer’s position. Suffice it to say that, after reading all that has been testified to, I am satisfied that these moneys never were paid over, and that Schaffer is in contempt for non-compliance with the order, which in substance directed their deposit in the trust company. I see no evidence to warrant Mr. Stuart’s last criticism as to $10, part of the $160.43 received from Bookman. He has referred to no testimony supporting his contention, and the referee seems to be correct even in that minor particular. But I do not agree to the conclusion as to a fine generally. Such a fine is only proper where no damages are proved, and where costs and expenses are alone awarded. I mean in civil contempts. Here the fine of $250 should be disallowed. The rest is allowed. And it is not necessary to add much to what was then said.”

We have thus, on the facts, a careful consideration of the evidence, not only by the referee, but by the learned judge who presided at the special term, when the motion for confirmation was made. A further examination confirms the correctness of the result declared.

The only points to which it is deemed nécessary to paya passing consideration are—“First. As to the interest charged upon the sums withheld by the appellant after the receipt of the order of February 26, 1888. There can be no doubt that he was properly charged with the interest, because the order was, in effect, a direction to pay the money into court; and if he had any rights in reference to it they would in that way have been preserved. And, secondly, as to the proposition that the order, having been made in five actions, with different plaintiffs, was void, it is only necessary to say that the attachments were issued simultaneously, and the whole fund in the possession of the appellant was applicable to them, and for that reason it was a beneficial way to the appellant of presenting the application. It prevented the impositian of costs in each action separately, and was in no way objectionable, because the subject considered and the points involved related to each one of the litigations. And, thirdly, as to the necessity for a demand, it must be said that there can be no doubt, as already suggested, that the order was one to pay money into court, and therefore the order to show cause, if any demand were necessary, was a sufficient performance of that ceremony.

There is nothing in sections 2267, 2268, and 2269 of the Code, on such a state of facts as existed here, requiring that a demand should be made before proceedings to punish for a contempt could be instituted. Section 2268 evidently refers to an order requiring the payment of money to a person eo nomine, and not to an order directing its payment into court, or to an officer selected by the court to receive it. All the contentions as to the necessity of a demand, therefore, in the points relating to that subject, are answered by this suggestion. The allowance of the sum of $250 for counsel -fee, and the costs and disbursements, are justified by section 2284 of the Code. People v. Railroad, Co., 76 N. Y. 294; Van Valkenburgh v. Doolittle, 4 Abb. N. C. 72. The learned counsel for the appellant regards the proof as to the amount of the counsel fee as too meager to justify its allowance. But in this he is mistaken. It may be said that the judge, in consideration of the motion,'could himself determine with great accuracy the question as to value, and was in the best possible condition to know whether the evidence given on that subject was sufficient. The bulk of the record, containing, as it does, 175 pages of printed matter, would seem to indicate that the sum awarded was not an excessive compensation for the services rendered. The order should be affirmed, with $10 costs and disbursements. All concur