Opinion
November Term, 1898.
Charles F. Brandt, for the appellant.
Julius Henry Cohen, for the respondent.
In supplementary proceeding against a debtor he was examined, and thereupon a receiver "of all the debts, property, equitable interests, rights and things in action of the said judgment debtor," with the usual powers, was appointed. The debtor was ordered to "deliver to the said receiver all property and money now in his possession or under his control, belonging to him and not exempt by section 2463 of the Code of Civil Procedure."
It appeared that the debtor conducted, in his own name, a men's furnishing store at No. 521 Myrtle avenue. Of this store he had a lease, and in the store he had a quantity of goods consigned to him for sale, and also a quantity of goods belonging to himself. The goods were commingled. The receiver demanded of the debtor "possession and control of the business and property" at such store, and attempted to place his agent in charge. The debtor prevented such agent from taking charge, and refused to deliver the store or any of the goods, saying that it was impossible for him to separate consigned from unconsigned goods, without a day's labor and going over his stock, piece by piece.
Upon the presentation of these facts, the County Court adjudged the debtor guilty of willfully violating the order of the court appointing the receiver, and ordered that unless within forty-eight hours he should deliver up the possession of the store and all goods contained therein, the judgment creditor, upon proof of the debtor's failure to comply with the order, might apply ex parte for an attachment against the debtor bailable in the sum of $250, and further, in case of such failure, ordered that the motion to punish for contempt be granted, with $10 costs, and that an order ex parte, to that effect, might be entered. From this order the defendant appeals.
In Matter of Pye, No. 1 ( 18 App. Div. 306, 308) this court held: "The motion to charge the appellant with contempt having been regularly conducted, presented for consideration the question only, whether the court had jurisdiction to make the order with which his disobedience was charged and established in such manner as to subject him to that imputation."
Following this authority, we think the debtor was guilty of disobedience of the order appointing the receiver. Certainly this is clear as to the store and the goods actually owned by the debtor, and his refusal to deliver them would be sufficient to justify the adjudication for contempt. It is unnecessary to examine the further question as to the order for the surrender of the consigned goods, although the demand for the store and for the goods which the debtor owned was coupled with a demand for the possession of such consigned goods. The debtor was guilty of contempt in refusing to surrender the store and the goods which, by his admission, were owned by him.
The order must be affirmed, with ten dollars costs and disbursements.
All concurred.
Order affirmed, with ten dollars costs and disbursements.