
    In the Matter of Walter P. Hess, Etc.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 18, 1888.)
    
    1. Contempt for non-payment of money—When one cannot be imprisoned FOR UNDER CODE ClV. PRO., § 2268.
    The assignment for the benefit of creditors to the petitioner as assignee, was set aside as fraudulent, and under the decision made in the actions setting it aside, the assignee was required to account for the assigned estate before a referee, and to deliver and pay over the property remaining in his hands to the receiver appointed in the action. The report of the referee required the assignee to pay in addition to the principal the interest and costs of the reference. The assignee failed upon demand to pay over the money, and upon an order to show cause he was adjudged guilty of contempt and fined the amount that it had been found he should pay the receiver, and the sheriff was directed to commit him to jail until he should pay to the receiver this sum, etc. Held, that the order directing the imprisonment of the petitioner was unauthorized. That the order or judgment directing the payment, of this money was capable of being enforced by execution. See Code Civ. Pro., § 1240.
    
      2. Same—When money payable to a receiver.
    The fact that the money was to be paid to the receiver in no way changed the liability of the assignee to punishment, for the money could be collected by execution issued upon a judgment entered for its recovery, and directing it to be paid by the sheriff after its collection to the receiver.
    8. Same—Part.y cannot be imprisoned for non-payment of money where execution can issue.
    Code Civ. Pro., § 2268, does not authorize the imprisonment of a judgment debtor for contempt for the non-payment of money which may be enforced by an execution.
    4. Same—Practice—Terms which court cannot impose on vacating ORDER.
    Where the right of a party to be set at liberty is absolute and unqualified the court cannot subject him to the performance of any condition for the enjoyment of that right.
    Writ of certiorari to inquire into the cause of the imprisonment and detention of Walter P. Hess.
    
      Lucien Birdseye, for relator; D. S. Riddle, for resp’t.
   Daniels, J.

The writ of certiorari was not issued under the authority of title 2, article 7 of chapter 16 of the Code of Civil Procedure. But it was issued under article 3 of title 2 of chapter 16 of the Code, whose functions and office are the same as the writ of habeas corpus. And it has the sanction chiefly of section 2041 of the Code, as well as of other sections in the same article containing references to these writs. Each is equally effectual where the objection exists that there is no legal cause for the imprisonment of the petitioner.

The motion to dismiss the writ on the ground that it was issued without legal authority is, therefore, without foundation, and the legality of the petitioner’s detention must be inquired into. He was the assignee in a general assignment made by Alice Hazard for the benefit of her creditors. That assignment was set aside as fraudulent in two actions brought by judgment-creditors of the assignor, charging that to have been the nature of the assignment. And under the decision made the assignee was required to account for the assigned estate before a referee, who was nominated to take the account, and to deliver and pay over the property remaining in his hands to the receiver appointed in this action. The accounting was had before the referee, who reported a sum of money to be due from the assignee on account of the property received by him under the assignment.

This report upon the hearing of exceptions filed by the assignee was confirmed on the 25th- of January, 1888, and in the order it was' adjudged that Walter P. Hess forthwith pay to Rowland E. Beers, the receiver, named and appointed in the above-entitled action, the sum of $723.92, being $638 principal and $90.92 interest thereon, mentioned in said report, and that he, also, forthwith pay to said receiver the fees of the referee and stenographer and such ■other disbursements as have been made or necessarily incurred in said accounting to be taxed by the clerk on notice, and, also, the interest on the sum awarded by said report according to section 1235 of the Code of Civil Procedure and take the receipt of said receiver therefor.

The section in this manner referred to, provided only for the addition of interest, and it is not important to consider it to determine the legality of the proceeding.

The assignee failed upon demand to pay over the money ■and he was then required to show cause why he should not be punished for disobedience of the order already mentioned, and on the hearing which afterwards followed a further ■order was made reciting the direction contained in the order of January, 1883, and adjudging the petitioner to be in contempt and imposing a fine upon him amounting to the sum of 1,111.53 and then directing the sheriff of the county of Kings, or the county of New York, to take the body of the petitioner and commit him to the common jail of the county and keep him detained therein until he should pay to the receiver this sum of money together with ten dollars costs of the application and the fees of the sheriff.

These orders seem to have been made upon the conclusion that the case made out was within section 2268 of the Code. That section has directed that a warrant may be issued to commit an offender to prison who neglects or refuses to obey an order of the court requiring the payment of costs or of a specified sum of money after the court shall become satisfied that a personal demand has been made therefor and that payment has been refused or neglected. But the broad language of this section has not been left unqualified by other provisions of the Code. It has on the contrary been provided by subd. 3 of section 14 of the Code, as it was under the preceding statutes, that a party to an action or special proceeding shall only be punished by way of fine and imprisonment for the non-payment of a sum of money when an execution cannot be awarded for the collection _ of that sum. And this has been further declared by section 1241 of the Code directing that where a judgment cannot be enforced by execution as that has been prescribed in the preceding section there the party refusing and neglecting to obey its mandate may be punished for a ■contempt of the court and its observance enforced in that manner.

The order of judgment directing the payment of this money was capable of being enforced by execution for by section 1240 of the Code a judgment for a sum of money in favor of either party or which directs the payment of a sum of money may be enforced by an execution.

These enactments are so broad as to include the class of cases where a sum of money has been recovered by one party against another, or has been directed to be paid by the judgment, and consequently that class of cases is not within the general language of section 2268 of the Code already mentioned. But after a right has accrued to recover the money, either a final order or judgment must be entered, and an execution issued for the collection of the amount.

The order in this case was of this description. It did not direct the payment by the petitioner of any specific .money he might have in his hands or under his control, but it was for the payment of money generally. It was for an ascertained and specific sum as distinguished from a specific or particular fund required or directed to be paid over, and where that is the order, the remedy of the party entitled to the money against the person legally bound for its payment is a judgment and execution. It may issue against his. property solely, or, in a case not arising upon contract, against his person, if the amount cannot be collected from his estate. The one or the other of these remedies is that which the law has prescribed as the means to be used by the creditor for the collection of the amount required to be paid.

This question was considered very fully in Meyers v. Becker (29 Hun, 567). In that case a very similar order was made directing the payment of money by an assignee after the assignment had been set aside as fraudulent. The assignee failed to pay the money, a,nd, after the usual proceedings taken against him for that failure, a precept was directed to be issued to commit him to the county jail until he'paid the amount named.

That was held to be unauthorized and unlawful, and, upon appeal to the court of appeals, this view was sanctioned and affirmed in 95 N. Y, 486. In the consideration of that case, it was held that the legal course of proceeding required the entry of a judgment, and the issuing of an execution for the collection of the indebtedness, and that the requirements of the law on this subject could not be evaded by resorting to an order committing the assignee to prison for his failure to comply with the direction of the order.

This right of imprisonment by way of proceedings for contempt was fully considered in the Matter of Watson, 69 N. Y., 536. There the party was imprisoned by a precept of the surrogate for a failure to comply with an order directing generally the payment of a sum of money; and the subject of the right to imprison for not paying was quite fully examined in the opinion of the court, and it was there said that “we have been referred to no case, and I have not found any since the Revised Statutes in which disobedience of decree or order merely directing the payment of money by an executor, trustee-, or other party, has been adjudged to'be a contempt for which a fine could be imposed and the party committed as for a criminal contempt to close custody.” Id. 544. And the same construction of the statutory provisions contained in the code, which in their essential features are like those contained in the preceding statute, was adopted and followed in Baker v. Baker, 23 Hun, 356; Gray v. Cook, 24 How., 432, and Miller v. Miller, 7 Hun, 208.

The imprisonment of the petitioner under the authority of these orders has neither the sanction of the statutory provisions nor of the cases decided under those provisions. But it was wholly unauthorized.

The fact that the money was to be paid to the receiver in no way changed the liability of the petitioner to punishment, for the money could be collected by execution issued upon a judgment entered for its recovery and directed to be paid by the sheriff after its collection to the receiver. That practice has the sanction of the case of Meyers v. Beecher, supra, and that was the only avenue in which the law has provided for the collection of the money directed to be paid by this assignee. Geery v. Geery, 63 N. Y., 252, 255.

ISTo warrant of commitment as that has been contemplated by the provisions of the Code, appears to have been issued for the arrest and imprisonment of the petitioner. But from the return of the sheriff to the writ of certiorari, it appears that he has been arrested and imprisoned under and by virtue of the order adjudging him in contempt, and imposing a fine upon him. But without placing any stress upon the absence of a commitment, it is sufficient for the purposes of the present decision to say that no legal foundation was presented upon which the petitioner could be adjudged to be in contempt, and directed to be imprisoned for the failure or refusal to pay this sum of money.

The order so far as it contained this decision was wholly unauthorized and beyond the jurisdiction of the court, and where that is found to be the case, it follows that the party imprisoned under the direction is held in custody without legal authority, and is entitled to be relieved by virtue of the writ of habeas corpus, or the writ of certiorari issued in place of the other writ. Code Civil Pro., § 2033, Subs. 1, 4, 5.

That is the case of this petitioner, and being unlawfully imprisoned, he cannot, as a condition of his right, to be discharged, be required to stipulate that he will not sue for false imprisonment. His right to be set at liberty is absolute and unqualified, and the court cannot subject him to the performance of any condition for the enjoyment of that right.

An order should be entered directing the sheriff to discharge him from custody.

Brady and Bartlett, JJ., concur.  