Opinion
August, 1907.
Isaac Russell, for plaintiff.
Paul Gorham, for defendant.
Motion is made to punish the Hill Dryer Company, its officers, agents or attorney, for contempt of court in disobeying an order heretofore granted directing their appearance for examination in proceedings supplementary to execution against the Hill Dryer Company. The moving papers consist of an affidavit and order for examination of judgment debtor, and an affidavit setting forth the failure of the Hill Dryer Company, its officers, agents or attorney to appear upon the return day of such order. From these papers it appears that judgment was recovered in a Municipal Court against the Hill Dryer Company, after personal service of the summons upon and an appearance by the defendant. In the affidavits of service of the orders for examination and to show cause upon this motion it is alleged that the papers were served upon J.P. Hill, the manager of the said Hill Dryer Company, personally. Upon the return day J.P. Hill appeared specially by counsel and raised the objection that the court had no jurisdiction in the supplementary proceedings, that the order of the justice directing appearance for examination was, therefore, void and that no contempt had been committed. The judgment creditor contends that the Hill Dryer Company is a corporation and subject to punishment for contempt. Where a contempt is committed by a corporation it may undoubtedly be punished by fine. People ex rel. Mayor v. Pendleton, 64 N.Y. 622. But disobedience is contempt only when the court has jurisdiction to make the order. In this case the moving papers do not show either that the judgment debtor is a corporation or that the court has jurisdiction if it be a corporation. The mere use of the term "company" by the defendant and the acknowledgment of such name by appearance in the action does not import corporate existence. The word "company" may be employed equally well by a corporation, a partnership or an individual doing business under a trade name. The papers only show that judgment was taken against the Hill Dryer Company, whatever the legal entity of such judgment debtor may be, and that an order to examine was served upon one J.P. Hill, alleged by the creditor to be the debtor's manager. But even were it conceded that the defendant is a corporation, the facts requisite to show jurisdiction are not set forth. Proceedings supplementary to execution are not authorized when based upon judgments against domestic corporations or against foreign corporations doing business in or having an agency in this State, except in proceedings brought by or against the people of the State. Code Civ. Pro., §§ 1812, 2463; Fitchburg Nat. Bank v. Bushwick Chemical Works, 13 Civ. Pro. 155. A foreign corporation not doing business in the State, nor having any business or fiscal agency therein nor an agency for the transfer of its stock, does not come within the prohibition of the statute, and proceedings may be maintained upon a judgment against such a foreign corporation. Logan v. McCall Publishing Co., 140 N.Y. 447. In the affidavit upon which the order for the examination of the judgment debtor was obtained it is alleged that execution was duly issued "to the sheriff of the County of New York, where said defendant, the Hill Dryer Company (the judgment debtor), has at the time of the commencement of this special proceeding a place for the regular transaction of business." It, therefore, appears that, even if the defendant be a corporation either domestic or foreign, these proceedings are not authorized. Upon the return of this order to show cause J.P. Hill filed an affidavit setting forth "that he is the husband of Evelyn F. Hill, who resides at Worcester, in the State of Massachusetts; that said Evelyn F. Hill has a plant for the manufacture of clothes dryers at Worcester, Mass., and that she carries on said business under the name of Hill Dryer Company; that said business is not owned or carried on by an incorporated Company of that or any other name, but is owned solely by said Evelyn F. Hill as an individual; that deponent is the same person mentioned in the affidavit of Ernest M. Garbe, verified April 4, 1907, wherein it is stated that Mr. Garbe served an affidavit and order for the examination of the judgment debtor, and that he served said affidavit and order on `Hill Dryer Company, the judgment debtor,' by delivering a copy of the same to deponent, `manager of Hill Dryer Company.' Deponent is not and never has been manager of Hill Dryer Company, which has no existence whatever other than as a name under which the said Evelyn F. Hill conducts her said business." The judgment creditor contends that if the debtor be not a corporation, then the motion should be granted directing punishment of the individual masking under the trade name. The proofs do not warrant such an order. If Evelyn F. Hill is the defendant, there is no proof of service upon her, and if J.P. Hill is the defendant, proof of such fact must be submitted. The defendant appeared, and after contesting the action judgment was entered against the Hill Dryer Company. If such defendant is in fact a natural person the pleadings and judgment may be amended upon proper motion, and thereafter examination of the judgment debtor duly directed and served. The proofs submitted do not shows the facts necessary to sustain a motion to punish the Hill Dryer Company for contempt, whether it be a corporation or a natural person.
Motion denied.