Leland v. Smith , 3 Daly 309 ( 1870 )

By the Court.^*

Joseph F. Daly, J.

This appeal is taken from an order of the special term of this court, vacating and setting aside the executions in the six actions. The executions were issued out of this court, after transcripts filed in the county clerk’s office of judgments obtained in the Marine Court. It appears from the appeal papers that the actions in the Marine Court were, after issue joined, referred on motion of plaintiffs, by a judge of the Marine Court, to a referee to hear and determine all the issues ; such reference to proceed on one day’s notice, without the consent of, and after opposition by, the defendant. The reference was stayed by order of the Marine Court, before it had been commenced. Such stay was vacated the same day it was granted, and a further order made that the reference should proceed the next day at nine o’clock. Between half-past eight and nine o’clock of the last-named day, a copy of the last-named order was served on a clerk in charge of defendant’s attorney’s office; and at nine o’clock the plaintiff. proceeded, on defendant’s failure to appear before the referee, proved his • case, took his report, entered up his judgments, filed his transcripts, and issued his executions, all on the same day. The defendants made no motion in the Marine Court to open the default, took no appeal from the judgments, but on the same day moved this court to vacate the judgments, and allow the defendants to come in and defend, and for such other or further relief as should be just. The learned judge at the special term of this court, being satisfied that the order of reference was made without authority, and that the bringing on of the reference without the notice of at least two days, required by statute (chap. 436, Laws of 1865), and entertaining some doubt as to whether the defendants had any remedy for these irregularities by appeal in the Marine Court, held that this court could and should relieve the defendants by preventing the enforcement of the judgments by the process of this coxirt, and therefore set aside the executions. This appeal is taken from the orders entered accordingly.

There can be no doubt that the order of refei’ence in the Marine Coxirt was irregular. That court has no power to refer the issues, unless the trial will require the examination of a long account (chap. 436, Laws of 1865). The motion for reference was made upon the pleadings, which do not disclose any necessity for proving any account; but, oh the contrary, show an issue proper to be tried before a jury. The coxirt had no power to direct the reference to proceed on one day’s notice. The statute requires not less than two, and the defendant cannot be deprived of his statutory right to full notice, unless he waives it, or unless conditions are imposed on him on granting him a favor—which was not the case here.

This being the case, where was the remedy of the defendants for these irregularities ? Not by motion, for no power exists in the Marine Court, before a single judge, to open a default taken before a referee. I am inclined, however, to believe that, on' an appeal from the judgment to the general term of the Marine Court,- the irregular orders of reference may be reviewed. The statute (chap. 617, Laws of 1853, § 5) allowing appeals to the general term of the Marine Court, provides that they shall be taken in the same manner, and with the like effect, as appeals in the Supreme Court, from .the decision of a single judge, to the general term. The 329th section of the Code, being included in chap. 1 of title 9 of the Code, entitled “ Appeals in General,” provides that, upon an appeal from a judgment, the court may review any intermediate order involving the. merits, and necessaidly affecting the judgment. This section, by § 8 of the Code, is, with the other parts of that act, declared to relate to actions in the Supreme Court. The legislature, by the Act of 1852, relating to appeals in the Marine Court, must have designed to confer a power which would afford the amplest relief to appellants, and yet this could not be gained without the construction here adopted, for otherwise the party injured by an irregular order would have no opportunity to have it reviewed (Harper v. Hall, 1 Daly, 498).

■ The orders of special term, therefore, should be modified so as to require the plaintiffs to stipulate that the defendants should take an appeal from the judgments of the Marine Court to the general term of that court, without objection by plaintiffs, and that, until the determination of the general term upon such appeals, and until the judgment of the general term of this court upon any appeal from such determination, the plaintiffs proceedings on the executions issued out of this court upon the said judgments be stayed.

Ordered accordingly.

The plaintiffs failed to stipulate as required by the order entered upon the foregoing decision.

On the 9th August, 1870, the defendants were adjudged • bankrupts in the U. S. District Court, upon the petition of a creditor. The stay of proceedings of July 21st, 1870, had, by consent, been modified so far as to permit the sheriff to sell the goods levied upon under the execution, and retain the proceeds.

In August, 1870, the plaintiffs’ attorney served upon the sheriff an order of the U. S. District Court, modifying the injunction theretofore issued by that court, so far as to allow the sheriff to pay over the proceeds of the sale to the plaintiffs. This order was obtained without notice to the defendants, and only, as was alleged, by collusion between the plaintiffs’ attorney and the attorney for the petitioning creditor in the bankrupt proceedings.

The sheriff being also informed by the plaintiffs’ attorney that the stay of proceedings of this court had been vacated, paid over the proceeds to the plaintiffs.

Upon learning this fact two months afterwards, the defendants moved that the moneys so paid to the plaintiffs should be returned to the sheriff, to abide the further order of this court, and of the U. S. District Court in the bankruptcy proceedings, and that the plaintiffs and their attorney be punished for their contempt in violating the stay of July 21st, 1870.

Upon the hearing of this motion Bobutsou, J., made the following decision:

Robinson, J.

Order granted in each case, that the plaint- • iffs’ attorney and his clients, within ten days from entry and notice of order, repay to the clerk, to abide the further order of this court, the money received from the sheriff upon their several executions, with $10 costs of this motion. Order to be settled on two days’ notice.

I-am of opinion:

1. That Judge Larremore had authority, upon the facts presented to him, to grant the order of 21st July, 1870.

2. That it was regularly served on plaintiffs’ attorney.

3. That it was in full force when plaintiffs’ attorney, in violation of its terms, collected and received from the sheriff the amounts collected by him in satisfaction of the judgment upon the executions he then held.

4. That such payment was made by the sheriff , upon the untrue representation that the order of Judge Larremore had been vacated.

5. That the money should be repaid to the clerk of this court, to abide further order.

6. That the attorney as well as his clients should be held responsible for such repayment.

7. Separate orders should be entered.

8. So much of the order as seeks to punish for contempt, denied such violation of the order occurring through misapprehension, and without any wilful intent.

From this decision the plaintiffs appealed to the general term, where the decision was affirmed, without a written opinion.

The plaintiffs failed to repay the moneys received from the sheriff, but filed and served undertakings and notices of appeal to the Court of Appeals. The defendants moved vat special term for the punishment of the plaintiffs and their attorney for their contempt, which motion was granted, with the following opinion:

Robinson, J. Plaintiffs and their attorney have been ordered to repay to the clerk of this court, to abide its further order, the amount received by them from the sheriff, on executions issued in these actions, in violation of a stay of proceedings granted by a judge of the court, and such order has, on appeal to the general term, been affirmed.

The judgments were recovered in the Marine Court, and the executions were issued out of this court, after transcripts thereof had been filed in the county clerk’s, office, under § 68 of the Code.

The present motion is to punish the plaintiffs and their attorney for contempt, in failing to comply with the mandate of the court requiring a repayment into the court of the money illegally obtained from its officer (the sheriff).

The answer made to this application is, that the plaintiffs have appealed from the decision of the general term, and given the security required by §§ 334 and 335 of the Code, upon the assumption that such appeal can be taken under the provisions of § 16, sub. 3, as “ from a final order affecting a substantial right made * * * upon a summary application in an action after judgment,” and without regard to the limitation contained in the same section, that such appeal shall not be allowed in an “ action originally commenced * * * in the Marine Court of the city of Mew York, unless any such general term shall, by order duly entered, allow such appeal before the end of the next term after which such judgment was entered.”

Mo such allowance of an appeal has been granted, and that section expressly excludes any such right of appeal as has been attempted to be exercised.

This court is, as to all questions in such a case, the court of final resort (except when it allows an appeal to the Court of Appeals), and its orders therein, until jurisdiction is lost by satisfaction of the judgment, and the perfection of all means allowed by law for the enforcement of the judgment, are conclusive.

Proceedings as for a contempt to enforce a civil remedy, adjudged against the the plaintiffs and their attorney, is a proceeding in the action (Pitt v. Damson, 37 N. Y. 235), and this court retains complete' jurisdiction for all purposes of. enforcing its orders regulating and controlling their ^conduct wherever they have violated or disobeyed them.

The appeal attempted to be taken by the plaintiffs is unauthorized, and forms no answer to the motion to punish for a contempt in not obeying the order of this court.

Motions granted with $10 costs.

* Present—Robinson, Loew, and J. F. Daly, JJ.