
    CUNNINGHAM v. HATCH.
    
      N. Y. Common Pleas, General Term ;
    
    
      March, 1893.
    1. Conte7iiptsl\ Disobedience by the defendant in an action brought to foreclose a mechanic’s lien to an order made upon setting aside a judgment by default against plaintiff, and directing defendant to restore the money withdrawn under such judgment, which had been deposited with the county clerk to discharge the lien, may be punished as a contempt of court, under Code Civ. Pro. § 14, subd. 3,—providing that a court of record may punish, by fine and imprisonment, a party to an action or special proceeding, an attorney, counselor or other person, for the non-payment of a sum of money, ordered or adjudged by the court to be paid, in case where by law execution cannot be awarded for the collection of such sum; or' for any other disobedience to a lawful mandate of the court.
    2. The sai/iel] In such a case, defendant being required to return the money to the county clerk, before the rights of the parties have been determined, no express or implied contract to make such restoration can be inferred ; and the punishment of defendant for contempt for disobedience to such order is not, therefore, forbidden by Code Civ. Pro. § 16,—providing that a person shall not be arrested or imprisoned for disobedience to a judgment or order, requiring the payment of money due upon a contract, express or implied, or as damages for non-performance of a contract.
    Distinguishing Forstman v. Schulting, 42 Hun, 643; O’Gora v. Kearney, 77 N. Y. 423 ; and Haebler v. Myers, 132 Id. 363 ; s. c., 28 Abb. N. C. 175.
    3. Mechanic's Ue7i.\ A defendant in an action to foreclose a mechanic’s lein, who has obtained a judgment by default and has withdrawn the money deposited by him with county clerk to discharge the lien, may be punished for contempt of court for refusing to obey an order, made upon opening plaintiff’s default, directing the restoration of the money withdrawn.
    Appeal from an order of the Special Term of the N. Y. Court of Common Pleas, denying the motion of the plaintiff in an action to foreclose a mechanic’s lien to punish one of the defendants for contempt in refusing to obey an order of said court, directing defendants, upon opening a judgment by default against plaintiff, to return to the county clerk the deposit, given to discharge the lien, which had been withdrawn by defendant on obtaining the judgment by default.
    On the first day of April, 1889, James Cunningham filed a mechanic’s lien against the property of Elias T. Hatch, Annie L. Hatch and others. Defendants made a deposit in conformity with L. 1885, c. 342, § 24, subd. 2, providing that a mechanic’s lien may be discharged “ by-depositing with the county clerk, if before the suit, of a sum of money equal to the amount claimed, with interest to the time of such deposit.” Subsequently an action was commenced to foreclose the lien, and issue taken. While the case was on the calender, defendants took plaintiff’s default, entered judgment thereupon, and withdrew the deposit given to discharge lien. On the 16th day of July, 1890, an order was made opening plaintiff’s default, vacating the judgment, and directing defendants to return the money withdrawn from the county clerk. The defendant, Anna L. Hatch, by whom the money had been deposited and who received it on its withdrawal, refused to comply with order as to re-depositing the money.
    
      The Special Term denied plaintiff’s motion to punish said Anna L. Hatch for contempt, on the ground that the law implies a promise to restore money obtained by the means of a judgment subsequently reversed or set aside ; and that under Code Civ. Pro. § 16, a person cannot be arrested or imprisoned for disobedience to a judgment or order requiring the paymemt of money due upon a contract, express or implied, or as damages for the non-performance of a contract.
    
      
      Á. C. Palmer, for appellant.
    
      Royal S. Crane, for respondent.
   GIEGERICH, J.

The only question presented by this appeal is whether the defendants can be punished for a contempt by reason of their disobedience of the order requiring them to return the deposit to the county clerk, which was affirmed on appeal (Cunningham v. Hatch, 18. N. Y. Supp. 458). The learned judge who presided at the-. Special Term where the order appealed from was made-assumed that the practice governing the restitution ' of moneys obtained by means of a judgment or order, which; is subsequently reversed or set aside, applied to the-deposit in question ; and he accordingly held that the latter was but money due upon an implied contract, and that,. under the provisions of section 16 of the Code of Civil. Procedure, restitution thereof could not be compelled by-proceedings to punish as for a contempt.

The case of Forstman v. Schulting (42 Hun, 643 ; 4 State Rep. 463), is cited in support of this ruling. In that case an attorney received moneys under an erroneous order, which was subsequently reversed ; he several times promised to repay them; but failed to do so. On a motion made to punish him for contempt, the court held that, where money has been received under an erroneous decision, the party receiving it is equitably bound to refund it, and the law will imply a promise oh his part to pay it over, as it will ordinarily, in cases where one person receives money belonging to, or for the use of another ~ and that the remedy for the case was the issuance of an-execution pursuant to section 779 of the Code of Civil Procedure.

The case of O’Gora v. Kearney (77 N. Y 423), is also-relied upon by the. respondents to sustain the order appealed from. In that case the order was dismissed with costs, which were voluntarily paid by the attorney. The judgment was afterwards set aside, and the defendant was directed to pay the costs to the plaintiff, and in default of payment he was adjudged guilty of a contempt. On appeal this was held to be unauthorized and void: and it was further held that the case came clearly under the provisions of section 1240 of the Code of Civil Procedure, which.relates to the enforcement of a judgment by execution, and not under section 1241, which prescribes in what cases a judgment may be enforced by punishment for disobeying it, because the judgment directed payment of money to the party and not to the court or an officer of the court. These cases are distinguishable from the one before us. There the payment of money was directed after the rights of the parties had been finally adjudicated ; while in the case at bar the defendants were required to return the deposit to the county clerk to await the determination of the rights of the parties to the action. There is a wide distinction between an order requiring the payment of money to a party, and the return of a deposit to the officer who is the legal custodian thereof, which is recognized by section 124] of the Code of Civil Procedure. The rule that the law implies a promise to repay moneys paid upon a' judgment or order which has been reversed ■or set aside, is founded on justice and reason. It does not obtain, however, until the judgment or order has been reversed (Haebler v. Myers, 132 N. Y. 363 ; s. c., 28 Abb. N. C. 175).

Applying these rules to this case, it is clear that a promise, either expressed or implied, cannot be inferred, for the reason that the return of the deposit was required before the rights of the parties interested therein had been 'determined, and which are still awaiting final determination. Now it is not even pretended by the respondents that the order directing a return of the deposit can be ‘enforced by execution against the property of the defendants. • As it cannot, what‘remedy has the appellant for •the enforcement of the order in question ? If the contention of the respondents prevail, then the appellant has absolutely none until the entry of final judgment in the action ; in other words, all proceedings for the enforcement of the order are suspended until then. Thus dishonest litigants -would not only be tempted to appropriate a “ deposit ” to their own use, but would be encouraged in their refusal to obey an order made for the return thereof. It would be manifestly unjust to those entitled to the fund to determine that, until a final judgment has been entered herein, the court is powerless to prevent the defendants from converting to their own use the deposit in question, the withdrawal of which, the learned judge found, may defeat, impair, impede, or prejudice the right or remedy of the plaintiff in this action. And it would indeed be a reproach to the law if it were not in the power of the court to compel the return of the deposit to the custody of the proper officer. Fortunately for the honor of our system of jurisprudence, the law affords ample remedy. Chief Justice RUGER, in delivering the opinion of the court in Forstman v. Schulting (107 N. Y. 644), well says : “ Both parties and attorney, who, through the aid of the court, have come into possession of property or money during a litigation, which subsequent proceedings in the action show was either wrongfully acquired or wrongfully retained, may be compelled to restore it to the rightful owner by order and attachment to enforce such restoration.” Section 14 of the Code of Civil Procedure prescribes: “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: . . . 3. A party to an action or special proceeding, an attorney, counselor or other person, for the non-payment 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, or for any other disobedience to a lawful mandate of the court; . . . The order for the return of the deposit is a mandate (Code Civ. Pro. § 3343, subd. 2); and the case at bar comes clearly within the provisions embraced in the last sentence of subdivision 3 of section 14 of the Code.

We have carefully considered the case of Haebler v. Myers {supra), and find nothing therein which, in our opinion, affects our determination of the question under consideration.

The order should, therefore, be reversed, with costs.

Pryor, P. J., concurred.

Order reversed, with costs.  