
    John Devlin, Appellant, v. Mary E. Hinman, Respondent.
    
      Contempt — order directing restitution of a fund on the reversal of a judgment—its * disobedience is a civil contempt.
    
    Where a fund, deposited in court to abide the final determination of an action., is paid to a defendant under a judgment apparently establishing her right thereto, and upon the reversal of the judgment an order of restitution is issued directing the defendant to repay the money into court, the disobedience of such order constitutes a civil contempt and may be enforced by commitment.
    
      Semble, that the oj'der is an interlocutory judgment within the meaning of subdivision 4 of section 1241 of the Code of Civil Procedure, prescribing what judgments may"be enforced by contempt proceedings.
    
      Semble, that even if the order partakes of the nature of a final judgment or order, and may be enforced by execution or by action, such remedy is not exclusive of the remedy by precept of contempt.
    Appeal by the plaintiff, John Devlin, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 23d day of February, 1899, denying the plaintiff’s motion to compel the defendant to deposit with the county treasurer- of Kings county a certain sum of money, the restitution of which had been ordered by the Appellate Division of the Supreme Court in the second judicial department, or in default thereof that the defendant’s answer be stricken out.
    
      John McCrone, for the anpellant.
    
      Edward M. Grout, for the respondent.
   Hatch, J.:

By this application the plaintiff seeks to punish the defendant as-for a contempt in failing to pay over moneys to the treasurer of the county of Kings directed to be -paid by an order of restitution granted by this court in reversing a judgment in the defendant’s favor. The action was brought to recover a sum of money which the plaintiff claimed was held by the defendant in trust for him. The money was deposited in the defendant’s name by virtue of an agreement between the parties under which the plaintiff claimed the right to control and use the same. The defendant having refused to permit the plaintiff to withdraw the money from the bank, the action was brought by the plaintiff to establish his title thereto.

The depositary of the moneys, having been made a party to the action, set up that it was a mere custodian of the funds, and asked to-be permitted to deposit the same to the credit of the action, and to be discharged from further liability on account thereof. This order having been made, the moneys were so deposited, and.thereupon became a fund in the bands of the court to await final determination of the action.

Upon the trial of the action the defendant obtained judgment in her favoi-, and thereupon served upon the depositary a copy of the judgment entered, and demanded of it the funds in its hands, and the same were thereupon delivered to the defendant. Upon appeal such, judgment was reversed, and an order of restitution directed to issue. Upon the entry, and service of a copy of this order ¡upon the defendant she failed to comply therewith, claiming that she was not then in possession of the money, or its equivalent in personal property. Thereupon this motion was made to punish the party as and for a contempt for failure to. obey the order of restitution, and, by way of penalty, the court was asked to strike out the defendant’s answer. It may be assumed that the court has the power to fix such penalty as punishment for such disobedience, if the failure to obey the order constitutes a contempt. (Walker v. Walker, 82 N. Y. 260; Hovey v. Elliott, 145 id. 126.)

The question, however, presented by this appeal lies back of the penalty which may be inflicted for a contempt, and such question is, does the failure to obey the order directing restitution constitute the same a contempt of court, and does the party become .entitled to such remedy? H the order of restitution is to he treated as a final judgment, then it is quite- clear that the plaintiff’s remedy is by execution, and proceedings to punish, as and for a contempt will not lie. (Meyers v. Beaker, 29 Hun, 567; affd. on appeal, 95 N. Y. 486; Geery v. Geery, 63 id. 252; Matter of Hess, 48 Hun, 586.) But it is evident that it is in no sense'to be regarded as .a final judgment; it does not assume to determine the rights of the parties in the action, and, so far as restitution' is directed, it is. a mere interlocutory order, having for its object the preservation of the' fund, so that when the rights of the parties are finally determined by an end of the litigation, the subject-matter thereof may remain intact, to be awarded to the successful party. Final judgment concludes the action; all others are interlocutory. (Code Civ. Proc. § 1200; 1 Bouv. L. Dict. [15th ed.] 828.) It is, therefore, evident that the rule of these cases does not apply to this order, and it seems to be assumed that disobedience of such an order may be punished as and for a contemrpt, unless by some provision of law execution is expressly authorized. (Myers v. Becker, 95 N. Y. 486.)

It is claimed by the defendant in the present case that if this order partakes of the character of a final judgment, then it is to be enforced by execution, as provided by section 1240 of the Code of Civil Procedure; and, if it be treated as an order, then it falls within the provisions of section 779 of the Code, which also provides a remedy for its enforcement by execution, and that in no view can it be said to fall within the provisions of section 1241 of the Code for the reason that the money was originally received by the defendant by virtue of an express contract, and that, by virtue of subdivision 4 of the last section, proceedings for contempt may not be taken in such a case.

We think there are several answers to these respective claims. Disposing of them in the inverse order of their statement, we find the first answer to be that the defendant did not obtain this money and does not now hold it by virtue of the provisions of the contract between herself and the plaintiff for the reason that her present custody of the money is by virtue of the judgment obtained in her favor, which apparently established her right to the money. The money had ceased' to be held either by the plaintiff or by the depositary as her agent when the same was paid into court by virtue of the order, which authorized the depositary so to do. It then became a fund in the hands of the court, to be held by it for the purpose of delivery to the party who should finally establish right thereto. Consequently, neither party could then obtain possession of this money by virtue of any contract relation, but could only receive it by virtue of an order of the court. So that the defendant is in possession of this money at the present time solely by virtue of the authority derived from the judgment, and, consequently, at the time when she received it, it was not by virtue of a contract, express or implied, or as damages for the non-performance of a contract". Therefore, the case is not one within the exceptions of this subdivision of the Code.

When the court took possession of this fund- it did so for the sole purpose of having the subject of the action under its control for delivery upon the final determination of the rights of the; parties. That time.has not yet arrived, and the defendant having received from the court the funds in its custody, and being now without right or authority to hold them by virtue of any order of the court, her possession becomes the possession of the court, and she becomes in respect of such fund subject to any legal order which the court may make with respect to its disposition. This is the sole authority under which she holds; consequently, it is clear that she -cannot resist the order of the court directing her to pay the money into its custody based upon any right under which she originally received; such money.

We come, therefore, to the question, is an execution authorized by virtue of the provisions of section. 779? It reads: ‘‘‘ Where' costs of a motion, or any other sum of money, directed by an order to be paid, are not paid within the time fixed for that purpose by the order, * * * an execution against the personal property .only of the party required to pay the same may be issued by any party or person to whom the said costs or - sum of money is made payable by said order. * * * But nothing herein contained shall be so construed as to- relieve a party or person from punishment as for contempt of court for- disobedience to an order in any case when the remedy of enforcement by such proceedings now exist.” It is noticeable that the provisions of this section relate to payment of money to a party or other person to-whom the order requires it to be paid. This order of restitution - does not direct the payment of the money to any person or party true, it directs the payment to the county treasurer of Bungsnounty,. but such officer is neither a party nor a person within the meaning-of this section of the Code; for the purpose of this order such officer is the court, for' when the money is paid to him it is- within the custody of the court; consequently, such provision of the Code-does not embrace such custodian within its terms, neither; does, it assume to affect or change any remedy which existed at the'time of its passage if such remedy were by proceedings for contempt. It is said that the language “ or any other sum of money ” is in terms sufficiently broad to embrace the money directed to be paid by the order of restitution, and that such contention finds further force by reason of the fact that this language was added long subsequent to the adoption of the original section. The amendment which inserted these words was adopted in 1884, but their significance and effect had been more or less well settled prior to that time. Under the former Chancery practice the remedy authorized for the payment of costs or for any other sum of money was by precept of commitment. (2 Barb. Ch. Pr. 271-273; 1 Burr. Pr. 339.) The provisions of the Revised Statutes, from which the practice which now finds place in the Code was taken, authorized proceedings by contempt for the enforcement of such an order. (2 R. S. 534, 535, pt. 3, chap, 8, tit. 13, subds. 3, 4.) Subdivision 3 reads: “ Parties to suits * * *• and all other persons for the non-payment of any sum of money ordered by such court to be paid in cases where, by law, execution cannot be awarded for the collection of such sum; ” a court of record shall have power to punish by precept, and by section 4 is authorized. a precept committing the person disobeying such order to prison as- and for a contempt. It is, therefore, evident that section 779 of the Code of Civil Procedure did not in essential respects change the law authorizing. the use of such remedies as had existed prior thereto,, and this appears for two reasons: First, the language is in substance the same as was ’ contained in the Revised Statutes, and, second, by express provision the remedies existing prior thereto-were expressly excepted in their operation in a proper case. In Brockway v. Copp (2 Paige, 578) the court held that under an interlocutory decree and the former Chancery practice, authority-existed to punish as for a contempt, and, under the provisions of the. Revised Statutes, to which reference has been made, if the right to issue an execution existed, the’ party was not thereby deprived of the right to proceed as for a contempt, that the remedies existed, and the use of either was at the option of the parties entitled to the remedy. In Strobridge v. Strobridge (21 Hun, 288) it was held that the term “ execution,” as used in this section of the Code, is so used, in a technical sense, and refers to the process provided by law for enforcing a final judgment as distinguished from an order, and that the practice in regard totlie enforcement of such order is regulated by proceedings as for a contempt. (P. 290.) This case is quoted with approval in Myers v. Becker (supra), and all of the cases seem ' to recognize that such a case falls within the provisions of section 2266 of the Code of Civil Procedure, which constitutes disobedience of such an order a contempt.

From what- has preceded, it would seem to follow that section 779 of the Code does not furnish in any event the exclusive rethedy for • the enforcement of such an-order as we are now considering; nor is there anything found in chapter 300 of the Laws of 1831, abolishing imprisonment for debt, and the subsequent amendments; thereto, which in anywise militates against the continued existence of the power to punish as for a civil contempt a failure to obey the lawful mandates of the court, except so far as the remedy is made exclu-. sive by execution, which, as we have seen, does not apply to this case. Such practice was expressly continued by virtue of r chapter 128, Laws of 1832, and the substance of these laws has been made a part of the present Code in varying form. (Dusenberry v. Woodward, 1 Abb. Pr. 443.) It is quite possible that a remedy exists to enforce the interlocutory judgment by process of execution or by action, but these remedies are not exclusive, they are additional to the common-law remedies which have been preserved by our present system of practice and do not destroy the remedy by precept of commitment of the infliction of other proper'penalties for failure to obey such mandate as has been issued in this case. (Haebler v. Myers, 132 N. Y. 363; Cunningham v. Hatch, 3 Misc. Rep. 101; Kieley v. Cent. Complete Combustion Mfg. Co., 13 id. 85.)

But aside.from these considerations, we are of' opinion that the case also falls within subdivision 4 of section 1241 of the Code of Civil Procedure. While in a sense, as we have seen, the order of restitution is not a judgment, yet the judgment rendered by the court was of reversal, and upon such determination the party becomes entitled to enter a judgment and make as a part thereof the order directing restitution of the money. Such judgment is not final, because it does not determine the rights of the ¡parties. It is interlocutory, and is within the meaning, as we- think, of the judgments mentioned.in this section of the Code. (Marvin v. B. I. M. Co., 56 N. Y. 671.) It appears from Mr. Throop’s note to this section that the decision in Gray v. Cook (24 How. Pr. 432) had so far raised a doubt as to the existence of any remedy to punish by contempt for refusal to comply with judgments and decrees in equity actions that the two sections, 1240 and 1241, became necessary to settle the practice in that regard. It may be observed that more clearness in expression as to the meaning of these two sections might have been secured, but the purpose is still clear enough to admit of the application and enforcement of the remedies for which the sections provide. In the Gray case, while in form the direction to pay over the money was by order, yet it was treated by the court as a final judgment, and one, therefore, to be enforced by execution. In the present case, while the determination of the court upon appeal resulted in a judgment, yet, as we have seen, it was not final, but was yet a judgment within the meaning of this section of the Code. The money directed to be paid over not being held or having arisen under the exceptions contained therein, we think it falls within its provisions and authorizes the remedy by contempt. Nothing in O'Gara v. Kearney (77 N. Y. 423) conflicts with this view. In that case the order of restitution was held to be in effect a judgment for a-sum of money, and, inasmuch as it directed payment to the party in the action, it was held that the proper remedy for enforcement was by execution. In the present case, the money is not directed to be paid to any party, but is directed to be paid into the custody of the court, and, therefore, falls within the excep-' tian noted in that case. Judge Danforth there said : “By section 1240, a 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,’ and section 1241 indicates certain cases where a judgment not obeyed by the party may be enforced by punishing him for contempt, viz.: (1.) When it is final, and cannot be enforced ' by execution as prescribed in section 1240. (4.) When the judgment requires the payment of money into court, or to an officer of the court.”

Our conclusion, therefore, is that disobedience of this order constitutes a civil contempt, and that the remedy for its enforcement may be by precept of commitment as for a contempt.

It does not necessarily follow, however, from this conclusion, that the defendant’s answer should be stricken from the record: What disposition she has made of this fund does not clearly appear from opposing affidavits, nor does it clearly appear that she is unable to . comply with the order. The "order of restitution does not direct the disposition of specific property; the specific thing is not what is sought after, but its equivalent is the purpose of the order. The court undoubtedly has the power, in a proper case, to relieve from the order where there is inability to make compliance. (Code Civ. Proc. § 2286; Cochran v. Ingersoll, 13 Hun, 368; Wheelock v. Noonan, 55 N. Y. Super. Ct. [J. & S.] 302.)

It follows that the order should be reversed and the case remitted to the Special Term for disposition, without prejudice to the right óf the defendant to make proof respecting her ability to comply with the order.

All concurred.

Order reversed, with ten dollars costs and disbursements to the . appellant, and application remitted to the Special Term for further hearing. ' ;  