
    The People of the State of New York ex rel. The Lawyers’ Surety Company of New York, Respondent, v. D. Edgar Anthony, Appellant.
    
      Receiver removed, and charged with certain funds — a surety company which pays' and is subrogated to the rights of the. creditoi' may. malee a demand which will sustain proceedings for contempt —when a. demand,giving time is absolute — interrogatories need not be filed when the facts are admitted — when actual loss ami injury a/re shown—form, of the order and of the commitment —when the term of imprisonment need not be stated—costs and expenses hot allowed, unless proved.
    
    Upon an. appeal from an order adjudging one Anthony to he in contempt of court, and from the commitment issued •. thereon, it appeared -that Anthony had been appointed the- permanent .receiver of a corporation; and -upon a final accounting: on his removal from that .office was: charged with the sum of $6,693.37, which he was directed to turn over to his successor. Subsequently Anthony’s successor demanded payment of this sum from Anthony’s surety, and- such proceedings were thereupon had that, under an order of the court, the surety paid the money to Anthony’s successor, who' transferred -to -the surety all his rights and remedies against Anthony. - ;
    Thereafter the surety served a written -demand upon Anthony, requiring payment to be made in three days, and, Anthony having failed to comply with the demand, procured a warrant of attachment to he issued, under which the sheriff arrested, Anthony. Upon the hearing, Anthony not denying the facts hereinbefore stated, the court made the order from which this appeal is taken.
    
      Held, that the surety, and not the receiver, was the proper party to demand payment of Anthony, as it had been subrogated to all the rights and, remedies of the receiver;
    That the fact that the demand served required payment within three days, did not make the demand any the less an absolute one, and the giving of such time was in no sense a waiver;
    That as all the facts necessary to constitute the offense charged were admitted, it was not necessary to file interrogatories;
    That where it appears that an order has been made that a receiver has a certain sum of money in his hands, which he has failed to pay over upon proper demand, actual loss and injury are sufficiently shown to justify an order for the commitment of the delinquent person;
    That the order and commitment were regular, notwithstanding the fact that the court did not impose the payment of the indemnity, to which the surety was entitled, in the form of a fine, it being sufficient to state in the order that the moving parties had been injured in a certain amount and to require its payment;
    That the commitment was sufficient, although it did not specify the duration of the imprisonment, as under section 2285 of the Code of Civil Procedure it is provided that where the misconduct in question consists in the omission to perform an act or duty which it is yet in the power of the person to perform, he shall be imprisoned only until he has performed it and paid the fine imposed;
    That inasmuch as the order and the warrant of Commitment specified the act to be performed, and the' act was one which, in a legal sense, it was in Anthony's power to- perform, they were sufficient, irrespective of- the fact Whether Anthony had-the actual financial ability to make .the payment or not;
    That as there was no. proof of what the costs and expenses of the proceeding had been, it was erroneous for the court to fix them at §250.
    Appeal by the defendant,, D. Edgar Anthony, from an order of the Supreme Court, made at the New York Special Term and entered in the office- of the clerk of the county of New York on the 31st day of March, 1896, adjudging him to be in contempt of court, and also from- a commitment issued thereon.
    
      Maurice Meyer, for the appellant.
    
      Carlisle Norwood, for the respondent.
   Van Brunt, P. J.:

The National Mutual Insurance Company, a corporation organ-, ized under the laws of the State of New York, being dissolved in an action brought for that purpose, the, appellant was appointed permanent receiver thereof on the 10th day of May, 1894. He duly qualified and entered upon his duties as such receiver and continued in office until he was removed by an order dated July 8,1895, under the terms of whiclrhis final accounting was directed to be had before a referee. Thereafter, said referee duly filed his report, and on the -3d of January, 1896,' an order was duly made and entered in said matter confirming said referee’s report and charging said appellant with the sum of $6,693.37 in cash belonging to the said National Mutual Insurance Company, which he had failed to turn over to Mr. Charles- H. Daniels, who had been appointed receiver as the successor of the appellant. The said order directed the appellant to pay over at. once said sum to Mr. Daniels, with interest from November 27, 1895. A demand having been made upon the Lawyers’ Surety Company by Mr. Daniels, the present receiver, for the payment by said company as surety for said appellant of said sum of $6,693.37, with interest, thereafter, and on or about the 10th of February, 1896, an order was duly entered in the aforesaid action authorizing the said receiver to receive payment of. the said sum with interest - as. aforesaid from the surety company,, and upon receipt thereof to assign,, transfer-and set over to the said company all his rights and remedies against the appellant so that said company should be subrogated to the rights and remedies of the said receiver. On the 17th. of February, 1896, the Lawyers’ Surety Company,, as surety for the appellant, paid to Mr. Daniels, the present receiver of said insurance company, the said sum, with interest, and .said receiver thereupon executed to' the surety company an assignment of all his rights and remedies against the appellant for the payment of the said sum of $6,693.37, with interest. . On the 2d of March, 1896, the surety company signed a demand upon the appellant for the payment of said' sum, with interest, and by its attorney served the same upon the appellant, together with certified copies of the orders and papers upon which the demand was based. The. appellant. having failed to comply with this demand, an application was made, for an order directing the issuance of a warrant of attachment as for contempt' against the appellant for disobedience ■of said order of January'3, 1896, in failing and neglecting to pay said sum with interest, which order was duly granted, and upon the. same day a warrant of attachment was issued' against the appellant returnable forthwith. The sheriff, having arrested the appellant under the said warrant, brought him before the court, and on the 31st of March, 1896, after various adjournments, the matter came up for hearing. The appellant filed an affidavit in no way denying the facts hereinbefore stated, but alleging that he had taken an appeal from the order fixing the amount of his liability, and that upon such appeal he verily believed that the order would be reversed entirely, or so modified as to reduce his liability many thousands of'dollars. The affidavit then proceeds to allege that the appellant is not chargeable with the amount which he has been adjudged to pay, and expresses the appellant’s desire to secure the surety company against any loss that it might sustain on his account, and asks that a stay of proceedings might be granted pending the appeal from the order on which the application to have him adjudged guilty of contempt was based upon his giving security to hold himself amenable to any further order of the court. The court thereupon entered an order adjudging the appellant in contempt of court in not having obeyed the order of January 3,1896, which required the payment of said sum of $6,693.31, with interest, and that the misconduct of the appellant was calculated to and actually did defeat, impair, impede and prejudice the rights and remedies of the plaintiff therein to its actual loss and damage in said sum and interest, besides costs amounting to the sum of $250, which the appellant was directed to pay. It was further ordered that the appellant be committed to the sheriff to be retained in close custody until he should pay said sums, and that a warrant issue to execute the order. Thereupon a warrant of commitment was issued, and from-the last-mentioned order and the said warrant this appeal is taken.

Various points are raised by the appellant upon the appeal It is urged that as the relator was not a party to the-action or proceeding in which the order directing the payment of the money was made, it could not invoice or continue tlie rights and remedies which had been given by said order to the receiver who- was the successor of the appellant. It seems to us that this point is not well taken. It appears that the- Lawyers’ Surety Company was the surety of the appellant upon his bond ; and that upon it being determined that he was in default, upon application to the court it obtained an order authorizing the present receiver to receive the amount which the appellant ought to have paid, and to make an assignment of all his rights, under the order which fixed the amount of the appellant’s liability, to the surety- company. The surety company. made the payment- to the receiver, and such receiver, in pursuance of the authority conferred, upon him- by the court, assigned to the surety company all his claims, under said order, with the intension, as was stated,.of subrogating, the surety company in his place and stead in respect to said order. - It is urged- that because of the use of these words ■ there was no subrogation, and that Mr. Daniels did-not actually: subrogate. the surety company-in-his place and stead, but. only stated that he.intended by. the assignment so to. do.- The.surety company, having under- the. circumstances--disclosed paid the: amount required- to be. paid by the appellant,-and the-decree being assigned to it Under the. authority of. the court -by its officer, succeeded necessarily to all the rights which- the -receiver' had enjoyed and was entitled to pursue the same remedies- as -the receiver had for the enforcement.of the decree.

It is .-.further urged that" no sufficient, personal- demand was ever-made of the appellant by any one.' This seems to be. based-upon the theory that the personal demand should have been made by Mr. Daniels, as receiver, even though, :by the order-of the court, all his rights had been transferred' to the surety company. As already stated, that company being his successor, by means of -the said- assignment; haoL a right to pursue all the remedies which the law provided for the enforcement of the order.. . -

It is urged that the demand required payment- within- three; days-; and the fact that the.surety company gave the appellant- -an opportunity to comply with. the terms of the decree is used- as" an argument that no absolute demand-was ever made.- We do not. see the force of this reasoning. A personal demand was made upon-him, copies of all the papers were served upon him, .and he was required to pay;, and the fact' that the surety company gave him three -days in which to make the - payment Certainly was not a- waiver • of' the demand. - - -

It is urged that as the appellant . did not admit the offense. charged, interrogatories should haive-been-filed.- Upon -an-examination of the affidavit of the appellant we think .it clearly appears that it does adm.it.all the-facts necessary'to constitute, the-offense charged. He admits the entry of the order; he admits that it required him to pay money which he has not paid; and all the answer that he makes is, that he has appealed from the, order- and- hopes to reduce the amount, and asks for time. He nowhere denies the entry-of the order or the facts claimed to be established by the order ; and we do not think that it. was the intention of the Code that interrogatories must be filed unless- the party makes an express admission upon the record. It is a rule of ¡heading in all civil actions and proceedings that a failure to deny is to be treated as an admission. When the appellant, therefore, made no denial whatever of any of the facts upon which the warrant of attachment was issued, there. was no necessity for interrogatories. It appeared before the. court that the appellant was guilty of the contempt' charged.

It is further urged that there was no lawful determination of any of the facts necessary to justify the order for commitment, and that there was no legal proof of actual loss or injury to any- one. ‘ It seems to us where it appears that an order has been made adjudging that a receiver has a certain sum of money in his hands which he fails to pay over upon proper demand, actual loss and injury are sufficiently shown. It is difficult to see how any other or more competent evidence could be- offered.

It is further urged that, as the court did not impose in the- form of a fine the-payment of the indemnity which the surety company was entitled to demand from the appellant, the order and commitment were irregular. This question has been determined adversely to the contention of the appellant in the case of People ex rel. Clark v. Grant (11 N. Y. St. Repr. 559), where it was-held that there was no particular magic in the word “fine,” and that where.it was' the clear intention of the court to impose the payment of- the amount unjustly withheld by the person to be committed, it was sufficient" to state that the moving party had been injured to this extent and to require the payment of the amount.

In regard to the fact that the commitment specifies no fixed duration of the imprisonment, which it is claimed upon the part of the appellant is an irregularity, as such imprisonment can only be for a reasonable time, not exceeding six months, it seems to be sufficient to say that by section 2285 of the Code of Civil Procedure it is provided that where the misconduct proved consists in the omission to perform an act or duty which it is yet in the power of the person to perform, he shall be imprisoned only until he has performed it and paid the fine imposed ; and that in such a case the order and the warrant of commitment must specify the.act or duty to be-performed, and the sum to be paid. Tiie order and warrant of commitment in the case at bar specified with sufficient, clearness the act to,be performed and directed the discharge of. the appellant upon compliance with the order, and the act was one- which in a legal sense it was in his power to perform, That as matter of -fact he may be unable to pay over the trust fund because, he has embezzled and squandered it is immaterial: That kind of inability is not the lack of power to do the act directed to be done which the law contemplates.. The order and warrant seems, therefore, to> have complied with the provisions of the Code in respect to the duration of the imprisonment.

■We-think, however, that the Court, in the absence of proof and judicial determination thereon, had no power to adjudge that the costs and expenses were $250. There is not. a scintilla of evidence contained iii this record to show what the costs and expenses were, and there was nothing' Upon which the court could' act. It was-improper, therefore, for the court to require the payment of this sum as. costs and expenses. It was not imposed as a fine in addition to the loss and injury which was occasioned by the neglect. of the appellant, but as an indemnity for disbursements incurred in respect to which there is. no proof.

"We think, therefore, that the order and commitment should be modified by striking, therefrom the provision requiring 'the payment of the sum of $250 as costs- and expenses; and that as SO' modified the order and commitment should be affirmed, without costs to either party.

Barrett, Patterson and Ingraham, JJ., concurred.

■ Order and commitment' modified by striking therefrom the provision requiring the payment of the sum .of $250 as. costs and expenses,- and as so modified affirmed,.' without costs -to either party.  