Hall v. Hess

Bijur, J.

I concur in the view that a fine should have been imposed on the judgment debtor to the extent of $291.40 and costs in connection with the policy No. 1,879,057. In my opinion, however, no punishment was justified in regard to the debtor’s dealings in connection with policy No. 789,413. The facts as to that policy are averred to be that prior to the making of the injunction order of August 9, 1915, that policy had been assigned to the insurance company to secure a loan of $1,548 due October 7, 1914. In August, 1914, the judgment debtor made a second assignment of the policy to his brother-in-law, Mr. Stern, to secure the payment of a loan of $1,000 to $2,000, made to him by Mr. iStern. In May, 1916, when the transaction alleged to be a contempt occurred, the surrender value of the policy, that is to say, its “ guaranteed reserve ” value, amounted to $2,064.53. In that month the company made a loan on the policy of $1,947.17, of which it retained $1,750.75 to cover its former loan and unpaid premiums, leaving $196.43 balance for which the judgment debtor avers that he “ accounted to Mr. Stern.” The policy would have lapsed on the expiration of the day on which this new loan was made had the overdue premiums not been paid. The note to the insurance company which evidences the new loan was made by the judgment debtor, his wife and Mr. Stern.

It is apparent from this recital of the financial status of the policy and the "loans which it secured that its guaranteed reserve value was at least $500 less than the loans which had been made upon it and to secure which the policy had been assigned by the judgment debtor, first, to the insurance company, and then, as a secondary assignment, to Mr. Stern. Its actual value to the judgment debtor in dollars and cents — if I may be permitted the use of the term — is minus $500.

I do not see how any disposal by the judgment debtor of an article already pledged for much more than its value can be said to be “ calculated ” to impair any right or remedy of a creditor. Many cases cited by respondent, to the effect that where the precise loss to the creditor has not been or cannot be shown a fine of $250 may nevertheless be imposed, are not in point; because in the instant case it affirmatively appears that the act of the debtor could not have injured the creditor since the article disposed of was utterly without value to the debtor or the creditor.

The respondent cites also a number of cases apparently to sustain a proposition which he does not clearly advance, but which I understand to be that any dealing by the debtor with property in which he is interested may be treated as a disposition of his property harmful to his creditors. The respondent’s error consists in failing to note a salient feature in the cases which he cites. Thus the extract which he quotes from Matter of Black, 138 App. Div. 562, begins: “ When the legal title to property is in a judgment debtor, he has no right to violate a positive order of the court,” etc. To the same effect is Walter v. Pecare, 11 N. Y. Supp. 146, cited by respondent. In that case the debtor was punished no.t because he had transferred an intangible and undefined interest in insurance money which was owing to him, but because he transferred a check representing moneys to which he had legal title, and the court did not believe his story of an assignment of his title made prior to the issuance of the injunction. It is apparent that in the instant case the debtor had no legal title to the policy.

It is claimed further, however, that it was the disposition made by him of the moneys received as the proceeds of the loan which constituted the contempt. It seems to me to be quite evident that this money was not received by him in his individual capacity, but solely as the agent or other fiduciary representative of the insurance company and Mr. Stem respectively to whom he was bound to account for every cent of it. The mere fact that the moneys may have come into his physical possession because the insurance company in a spirit of caution may have insisted on making a check payable either to his order or to the order of the three parties, including himself, who had signed the note, has no juridical significance. If the money which he received was not his money, but the money of the insurance company and Mr. Stern, it came into his hands merely as agent or other fiduciary and his disposal of them in the interest of his principal or .cestui que trust was not a violation of an injunction against the disposal by him of any of his property.

Order modified by reducing the fine to the sum of two hundred and ninety-one dollars and forty cents, with thirty dollars costs to be paid within thirty days after notice of entry of the order entered herein in the City Court; and as thus modified affirmed, with ten dollars costs and disbursements to the appellant; costs to be applied upon the fine.

Guy, J., concurs.