Harris v. Elliott

Decision Date05 June 1900
Citation163 N.Y. 269,57 N.E. 406
PartiesHARRIS v. ELLIOTT et al.
CourtNew York Court of Appeals Court of Appeals


Appeal from supreme court, appellate division, First department.

Action by Richard D. Harris against George Elliott and others, as executors, and others, including Elizabeth C. Walker, as administratrix of Thomas M. Wheeler, deceased. From an order of the appellate division, First department (62 N. Y. Supp. 632), affirming, not unanimously, an order of the special term adjudging the plaintiff guilty of a civil contempt, and imposing a fine upon him of $1,373.48, and committing him until payment or his sooner lawful discharge, for that he refused to pay to the defendant Elizabeth C. Walker, as administratrix, $1,170.20, with interest from April 14, 1897, pursuant to a judgment which directed him to make such payment within five days after the service of a copy of the decree upon him, plaintiff appeals. Reversed.

The appellate division gave the plaintiff leave to appeal, and certified to this court the following question: ‘Whether, upon the record on the plaintiff's appeal to this court from said order of January 5, 1900, the supreme court has power to enforce payment of the judgment in favor of the respondent Elizabeth C. Walker against the plaintiff for the sum of $1,284.28, with interest, by punishment of the plaintiff for contempt of court.’ The proofs upon the motion to punish plaintiff for contempt were: (1) That the plaintiff formerly held a certain mortgage, described in his complaint, in trust for various purposes, and, among others, for the benefit of Thomas H. Wheeler. (2) That he brought a suit in which he prayed the judgment of the court as to the rights of the respective parties to and in the proceeds of this mortgage, and in his complaint alleged ‘that this plaintiff has collected the balance due on said mortgage, and now has in his hands a balance of $10,742.38, and holds the same, together with interest on said sum from March 9, 1893, subject to the rights and interests of the parties hereto; that the plaintiff is ready to deposit the money in his hands in court, or to make such other disposition of the same as the court may direct.’ (3) That by a stipulation made in the suit, dated December 6, 1896, it was determined that the interest of Elizabeth C. Walker, as administratrix of the estate of Thomas M. Wheeler, in this fund, was then $1,170.20. (4) That by her answer to the supplemental complaint the administratrix prayed that ‘the plaintiff, as trustee of the fund mentioned in the complaint, be adjudged to pay to her the sum of $1,170.20, with interest from April 1, 1897.’ (5) That on the trial of the issues the court determined as follows: ‘As far back as 1889 the plaintiff became the assignee in trust of a mortgage for the purpose of securing payment of certain moneys to Riggs & Co., and of depositing in a trust company a sum as security for fees of John Elliott. The plaintiff, having a balance in his hands as such trustee, began an action in equity November 10, 1895, setting out his trust relations, specifying the fund and the claims upon it, asking that the amount owing to defendants be ascertained, and praying a determination of the plaintiff's claims upon the fund.’ The portion of that judgment which it is sought to enforce by contempt process reads as follows: ‘And it is further ordered, adjudged, and decreed that the plaintiff, Richard D. Harris, pay within five days after the service of a copy of this decree and of notice of entry of this decree upon him or his attorneys, unto the estate of Thomas M. Wheeler, deceased, or Wyllys Hodges, his attorney, the sum of $1,170.20, with interest thereon from the 14th day of April, 1897, amounting to the sum of $114.08 (amounting in all to the sum of $1,284.28).’ The county clerk of New York county refused, on the defendant's application, to docket the judgment against the plaintiff, on the ground ‘that said judgment was not by its terms immediately payable, but was payable five days after the service of a copy of said decree and notice of entry thereof, and that it was for this reason not docketable by law.’ A certified copy of the judgment was served upon the defendant, due demand of payment made, and payment refused.

Otto C. Wierum, Jr., for appellant.

Everett P. Wheeler, for respondent.

LANDON, J. (after stating the facts).

The sole question is as to the power of the supreme court, upon this record, to enforce payment of the judgment by punishment for contempt. We assume the practice to be regular in form. The point of the appellant is that this judgment can be enforced by execution, and therefore cannot be enforced by punishment for contempt. He relies upon the provisions of the Code of Civil Procedure. The respondent relies upon such provisions, and also contends that apart from them the supreme court has power to punish disobedience to its judgments in proper cases, as part of its general jurisdiction in law and equity, and as a necessary and inherent power, in cases omitted in the statutes, to enforce its judgments. This may be so as to contempts in civil cases, since the statutory restriction as to criminal contempts expressed in Code Civ. Proc. § 8, is not repeated in section 14 as to contempts in civil cases. So far, however, as the statutes define and limit the power, they must be observed. People v. Riley, 25 Hun, 587; Sherwin v. People, 100 N. Y. 351-358, 3 N. E. 465. Passing to inquire whether the statutes provide for the case before us, we find the following Code provisions:

Sec. 14. A court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced, in either of the following cases: (1) An attorney * * * or other person, in any mannerduly selected or appointed to perform a judicial or ministerial service, for a misbehavior in his office or trust * * * or for disobedience to a lawful mandate of the court. * * * (3) A party to the action * * * for the nonpayment of a sum of money, ordered or adjudged by the court to be paid, in a case where by law execution cannot be awarded for the collection of such sum.’

Sec. 1240. A final judgment may be enforced by execution: (1) Where it is for a sum of money, in favor of either party; or directs the payment of a sum of money.

Sec. 1241. In either of the following cases a judgment may be enforced * * * by punishing him for a contempt of court: (1) Where the judgment is final, and cannot be enforced by execution, as prescribed in the last section [1240]. * * * (4) Where the judgment requires the payment of money into court, or to an officer of the court. [Excepting cases not material here.] If the judgment is final, it may be enforced, as...

To continue reading

Request your trial
6 cases
  • Governor Clinton Co. v. Knott
    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 4, 1941
    ...equitable decrees for money, Geery v. Geery, 63 N.Y. 252, but in most circumstances has entirely supplanted contempt. Harris v. Elliott, 163 N.Y. 269, 57 N.E. 406. ...
  • Mason v. Finley
    • United States
    • Oklahoma Supreme Court
    • April 17, 1928
    ...pay the money into court within 60 days. That provision probably forbade the issuance of an execution for that period of time. Harris v. Elliott (N.Y.) 57 N.E. 406. The judgment being docketed, there was nothing to prevent the issuance of an execution after the expiration of the 60 days. By......
  • Mason v. Finley
    • United States
    • Oklahoma Supreme Court
    • April 17, 1928
    ... ... within 60 days. That provision probably forbade the issuance ... of an execution for that period of time. Harris v ... Elliott et al., 163 N.Y. 269, 57 N.E. 406 ...          The ... judgment being docketed, there was nothing to prevent the ... ...
  • Keesing v. Wishnefsky
    • United States
    • U.S. District Court — Southern District of New York
    • November 9, 1943
    ...of our conclusion that such a receiver is clearly an officer of the court, within the meaning of that section." See Harris v. Elliott, 1900, 163 N.Y. 269, 274, 57 N.E. 406. Such a receiver was sharply distinguished in General Electric Company v. Sire, First Dept. 1903, 88 App.Div. 498, 85 N......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT