Nelson v. Hirsch

Decision Date22 May 1934
Citation190 N.E. 653,264 N.Y. 316
PartiesNELSON v. HIRSCH et al.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Action by Hyman Nelson against Benjamin Hirsch and others. From an order of the Appellate Division (240 App. Div. 983, 268 N. Y. S. 225), which reversed on the law and facts an order made at Special Term adjudging defendant Benjamin Puritz in contempt and dismissed the appeal of said Puritz from an order denying a motion to vacate the interlocutory and final judgment, plaintiff appeals.

Appeal dismissed.

Appeal from Supreme Court, Appellate Division, Second department.

Louis P. Goldberg and Samuel S. Rosh, both of Brooklyn, for appellant.

Joseph A. Seidman, of Brooklyn, for respondent.

POUND, Chief Judge.

This case comes to us on an appeal from an order of the Appellate Division reversing ‘on the law and the facts' an order of the Special Term which adjudged respondent, Puritz, in contempt for failure to pay over $8,000 to a receiver appointed in the action as directed by the final judgment. The appeal was allowed by the Appellate Division on a certified question which reads: ‘Was the order granting on this record plaintiff's motion to punish the defendant Puritz for contempt properly made?‘

The judgment was obtained in an action brought under section 60, subdivisions 1 and 2, of the General Corporation Law (Consol. Laws, c. 23):

‘1. To compel the defendants to account for their official conduct, including any neglect of or failure to perform their duties, in the management and disposition of the funds and property, committed to their charge.

‘2. To compel them to pay to the corporation, or to its creditors, any money and the value of any property, which they have acquired to themselves, or transferred to others, or lost, or wasted, by or through any neglect of or failure to perform or other violation of their duties.’

Without considering whether an order punishing for contempt may ever properly be made in such an action, we must take heed that the question whether this order was properly made was before the Appellate Division and the order below reversed on the law and the facts. The order was a discretionary one.

Where, on a reversal by the Appellate Division final judgment or a final order is rendered upon new findings of fact, and the appeal is properly before us, we may examine the facts and determine for ourselves what a sound discretion requires. On such an examination we find that Puritz refused to pay to the receiver of Hirsch-Lasky...

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8 cases
  • Jennings v. Watt
    • United States
    • New York Court of Appeals Court of Appeals
    • 22 Mayo 1934
  • R. C. Gluck & Co. v. Tankel
    • United States
    • New York Supreme Court — Appellate Division
    • 28 Febrero 1961
    ...involving the application of Section 505, Civil Practice Act (Nelson v. Hirsch, 240 App.Div. 983, 268 N.Y.S. 225, appeal dismissed 264 N.Y. 316, 190 N.E. 653, court saying contempt discretionary; Victor v. Turetz, 266 App.Div. 311, 42 N.Y.S.2d 33) it may fairly be concluded that the nature ......
  • Keesing v. Wishnefsky
    • United States
    • U.S. District Court — Southern District of New York
    • 9 Noviembre 1943
    ...Not much light is thrown on the question by Nelson v. Hirsch, Second Dept. 1933, 240 App.Div. 983, 268 N.Y.S. 225, appeal dismissed 264 N.Y. 316, 190 N.E. 653. From the memorandum opinion of the Appellate Division and the opinion of the Court of Appeals, it appears that the trial court adju......
  • Gould v. Jacobs
    • United States
    • New York Supreme Court
    • 22 Diciembre 1964
    ...power of the courts, the New York decisions demonstrated various inconsistencies. Among the decisions discussed was Nelson v. Hirsch, 264 N.Y. 316, 190 N.E. 653, upon which defendants rely. It stated (p. 245): 'The reasoning used in this case, the earmarked or specific fund required to be p......
  • Request a trial to view additional results

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