
    George L. Whitman et al., v. John R. Haines et al.
    
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 28, 1889.)
    
    1. Contempt—Practice—Caption of original action—When retained.
    It is proper to preserve the caption of the original action in a proceeding to punish a deputy sheriff for contempt for disobeying an order made in such action.
    
      2. Same—Deputy sheriffs.
    The deputies are servants of the sheriff and in law are considered hut as one officer.
    3. Same—Practice—Service of order.
    Where an order is made requiring money to be paid into court, Held, that upon its service compliance is required without any special demand.
    4. Same—Interest—When chargeable.
    Interest is properly charged upon sums withheld after service of an order requiring the same to be paid into court.
    On December 8, 1885, a warrant of attachment against the defendants’ property was issued in each of the above actions to Alexander V. Davidson, then sheriff of Hew York county, who deputized George W. Schaffer, the respondent, as his deputy to execute the same. Under these attachments Schaffer levied on merchandise belonging to the defendants, and on debts owing to the defendants from about nineteen merchants doing business in the city of New York aggregating over $6,000. Between December 8, 1885, and February 17, 1886, Schaffer collected from the property so attached $4,865 08. In January, 1886, the plaintiffs’ attorney requested Schaffer not to pay to Sheriff Davidson the moneys that had been collected under the warrants of attachment for the reason that his term of office had expired and rumors were afloat to the effect that he was insolvent. Schaffer then informed the plaintiffs’ attorney that he had already paid Davidson about $2,900 of the money, but promised that he would keep the rest.
    In February, 1886, Davidson absconded, and thereupon the plaintiffs’ attorney called upon Schaffer and asked him if he had the money, and Schaffer then told the attorney that Davidson had compelled him to pay it all over to him a day or two before he absconded. This statement was not true" The fact was that at that time Schaffer had collected $4,865.08 and had paid Davidson $3,063.95 and had in his possession $1,801.13.
    On February 26, 1886, an order was entered in the above actions which contained the following directions: “It is ordered that Alexander Y. Davidson, late sheriff of the city and county of New York, and his attorney, Edward J. Shelley, and each and every of the deputies and ex-deputies and clerks and assistants of the late sheriff forthwith deposit in the United States Trust Company of New York to the credit of said five actions any and all moneys now in their hands, or in the hands of any of them, or which may hereafter come into their hands, or into the hands of any of them, or under their control by virtue of the warrants of attachment, or any of them, granted in the above entitled actions, or any of them.”
    On March 8, 1886, a copy of the above order was duly served on Schaffer, and in obedience thereto he deposited in the trust company $90.25, and notified the plaintiffs’ attorney of the fact, who thereupon demanded that Schaffer deposit the rest of the moneys in the trust company, and Schaffer then repeated the statement that he had paid it all over to Davidson.
    Thereupon the plaintiffs’ attorney, applied to the several merchants upon whom the warrants of attachment had been served, and obtained from them the cancelled checks by which they had made their payments into the sheriff’s office, and seeing from the indorsements on these checks that only about $3,000 had been received by Davidson, he opened communication with Davidson, through Mr. Shelley, who was Mr. Davidson’s attorney in fact, and Davidson pronounced Schaffer’s statement to be. false, and he made an affidavit to that effect.
    
      Davidson sent this affidavit to Shelley, who showed it to Schaffer, and threatened that if be did not pay over the money he had collected he wTould deliver the affidavit to the plaintiffs.'
    
      Sidney H. Stuart, for app’lt; Hy. Stanton, for resp’t.
   Brady, J.

The learned justice who directed a reference in this proceeding, upon the coming in of the referee’s report and upon proper application therefor, confirmed it, with one exception. He directed that the tine imposed be stricken out, and thus relieved the appellant from that burden. He expressed himself upon the subjects involved in this appeal, as follows:

‘ ‘ Whitman v. Haines, and four other actions.
“First. The plaintiffs having proceeded by order to show cause, the caption of the actions was properly preserved. It is only where the proceeding is by attachment that the respondent’s views are sustained by the Code and the authorities.
“Second. The order of the 26th of February, 1886, was served upon Schaffer, and was binding upon him. The deputies are servants of the sheriff, and in law they are considered but one officer. Allen on Sheriffs, 81, 86; Pond v. Leman, 45 Barb., 154.
The order was for the benefit of the plaintiffs, and upon its service compliance was required without any special demand. It directed payment to a trust company, and the contempt consisted in not making the payment to the trust company as directed. Besides, Schaffer complied in part, and thus recognized his duty under the order. And he gave a false reason for non-compliance generally, but a reason which had no relation to the validity of the order or the sufficiency of the service, or to any question of demand. It was simply a case where an officer of the court having moneys in his hands, collected under process, is required to bring such moneys into court._ Upon service of such an order, and proof of non-compliance, the officer is in contempt.
Fourth. Upon the merits there can be no doubt that the referee’s conclusions are correct. Schaffer received the moneys from Crager and Bookman, and has failed to establish their payment to Davidson. It is not necessary to analyze the testimony upon this head. It could not be done without reflecting seriously upon Schaffer’s position. Suffice it to say that after reading all that has been testified to, I am satisfied that these moneys never were paid over, and that Schaffer is in contempt for non-compliance with the order, which in substance directed their deposit in the trust company. I see no evidence to warrant Hr. Stuart’s last criticism as to ten dollars, part of the $160.43 received from Bookman. He has referred to no testimony supporting his contention, and the referee seems to be correct even in that minor particular. But I do not agree to the conclusion as to a fine generally. Such a fine is only proper where no damages are proved, and' where costs and expenses are alone awarded. I, mean in civil con-tempts. Here the fine of $250 should be disallowed. The rest is allowed; and it is not necessary to add much to what was then said.”

We have thus on the facts a careful consideration of the evidence, not only by the referee, but by the learned judge who presided at the special term when the motion for confirmation was made.

A further examination confirms the correctness of the result declared.

The only points to which it is deemed necessary to pay a passing consideration are, first, as to the interest charged upon the sums withheld by the appellant after the receipt of the order of February 26, 1888. There can be no doubt that he was properly charged with the interest, because the. order was in effect a direction to pay the money into court, and if he had any rights in reference to it they would in that way have been preserved. And, secondly, as to the proposition that the order having been made in five actions with different plaintiffs was void, it is only necessary to say that the attachments were issued simultaneously, and the whole fund in the possession of the appellant was applicable to them, and for that reason it was a beneficial way to the appellant of presenting the application. It prevented the imposition of costs in each action separately, and was in no way objectionable, because the subject considered and the points involved related to each one of the litigations; and, thirdly, as to the necessity for a demand it must be said that there can be no doubt, as already suggested, that the order was one to pay money into court, and, therefore, the order to show cause if any demand were necessary, was a sufficient performance of that ceremony.

There is nothing in sections 2267, 2268 and 2269 of the Code on such a state of facts as existed here, requiring that a demand should be made before proceedings to punish for a contempt could be instituted. Section 2268 evidently refers to an order requiring the payment of money to a person eo nomine and not to an order directing its payment into court or to an officer selected by the court to receive it. All the contentions as to the necessity of a demand therefore in the points relating to that subject are answered by this suggestion.

The allowance of the sum of $250 for counsel fee and the costs and disbursements, is justified by section 2284 of the Code. People ex rel. Garbutt v. R. and S. L. R. R. Co., 76 N. Y., 294; Van Volkenburg v. Doolittle, 4 Abb. N. C., 72.

The learned counsel for the appellant regards the proof as to the amount of the counsel fee as too meagre to justify its allowance. But in this he is mistaken. It may be said that the judge, in consideration of the motion, could himself determine with great accuracy the question as to value, and was in the best possible condition to know whether the evidence given on that subject was sufficient. The bulk of the record containing as it does 175 pages of printed matter, would seem to indicate that the sum awarded was not an excessive compensation for the services rendered.

The order should be affirmed, with ten dollars costs and •disbursements.

Van Brunt, P. J., and Macomber, J., concur.  