5 Bosworth Super. Ct. Rep. 710

James H. Hilliker, Receiver, Plaintiff, v. George C. Hathorne, Jr., et al.

1. Where by a judgment or decree a defendant is required to execute an assignment or conveyance to the plaintiff, and an instrument in proper form is tendered to him, he is bound to execute it, although it has not been submitted to the Court or Judge for approval.

2. It is, however, proper that such a judgment should provide for the settlement of the form of the instrument by a Judge or Referee, and if the defendant is in doubt respecting the propriety of the form of the instrument proposed, he should apply to the Court to have it settled.

3. On a motion to punish a defendant for a contempt in not executing the assignment tendered, where the judgment did not provide any mode of settling the form thereof, it appeared that the defendant acted in good faith, under the advice of counsel deeming him not bound to sign the instrument in the form tendered; the motion was discharged without costs, on the defendant’s executing the instrument.

4. In an action by a Receiver, on behalf of a judgment creditor to set aside an assignment of a lease, the Court, on the 27th of March, announced its decision that the assignment was void; that the plaintiff is entitled to an assignment thereof as Receiver, and to the rents thereafter to accrue from the tenants in possession. On the 1st of April, one of the defendants, who had heard, in general terms, that the case had been decided in the plaintiff’s favor, but had no knowledge of the particulars, or that the plaintiff was by such decision entitled to the rents due that day, collected such rents. On the 9th of April, a judgment was entered in conformity with the decision, and was made to bear date of the day the decision was announced. The defendant was not under any injunction in the action, and the decision did not direct an injunction. Upon these facts, a motion to punish the defend- . ant for collecting those, rents, as for a contempt, was denied.

(Before Woodruff, J.)

At Special Term; May 5th, 1860.

In this case certain judgment creditors of the defendant Hathorne, caused him to be examined before a Judge of the Supreme Court on proceedings supplementary to execution issued on a judgment recovered in that Court, procured an injunction from a Judge of that Court, to restrain him from disposing of or interfering with his property, and the plaintiff herein was appointed Receiver of his property. The plaintiff, as Receiver, brought an *711action in this Court to set aside an assignment of a lease executed and delivered by Hathorne to the other defendants as fraudulent and void as against the judgment creditors. A judgment was rendered declaring the assignment void, and directing the defendants to assign the lease to the plaintiff as Receiver, and directing the tenants in possession of the premises “ to pay over the rents hereafter to accrue to the plaintiff, as such Receiver, and that he collect a sufficient amount to satisfy the judgment and execution aforesaid with costs,” &c. The decision of the Court was publicly announced and noted in the minutes on the 27th day of March, 1860. But the judgment was not drawn up and entered until April 9th, 1860. After which the plaintiff’s attorney drew an assignment and tendered it to the defendant, Hathorne, for execution, and served on him a copy of the judgment. He declined; his counsel advising him that he was not bound to sign the instrument tendered to him, and that the form of the instrument must first be settled by the Court, or under its order, before he should sign it.

Rents became due from the tenants of the demised premises on the 1st day of April, (after the Judge had announced his decision,) and the defendant, Hathorne, after he had heard in general terms that the case was decided in the plaintiff’s favor, but before the judgment was entered, collected such rents or a portion thereof.

The plaintiff then moved for an attachment to punish the defendant, Hathorne, for a contempt in refusing to execute the assignment and also in collecting such rents.

His excuse was, that the form of the instrument of assignment had not been settled or approved by the Court or a Judge thereof and the advice of his counsel.

And in relation to the collection of the rents, he swore that he was not aware that by the decision of the Court the plaintiff was entitled to the rents which had already become due; that the rent which he had collected had become payable before he had received any notice of the terms of the judgment and before the judgment itself was entered, which declared the plaintiff to be entitled to the rents hereafter to accrue.

The judgment when entered, viz., on the 9th April, 1861, was made to bear date March 27th, the day the decision was *712announced. It contained no terms of injunction restraining the defendants.

Nelson Smith, for plaintiff, in support of the motion.

1. Refusal to execute the assignment was a contempt.

2. Collection of rents after notice that the case was decided in favor of the plaintiff, was a contempt although the decree had not been entered or served. (Skip v. Harwood, 3 Atk., 564; Kempton v. Eve, 2 Ves. & Beames, 349; Hull v. Thomas, 3 Edw. Ch. R., 236; People v. Compton, 1 Duer, 515, 553.)

Although the decree contains no prohibition restraining Hathorne from collecting the rents,, it does declare the plaintiff entitled thereto, and adjudges their payment to him as Receiver. It was, therefore, a contempt on his part, and impeded the plaintiff in the assertion of his rights under the decree tending to defeat the decree, and render it ineffectual. (5 Vin. Abr., 446; Sir James Butler's Case, 2 Salk., 596.)

Otis D. Swan, for defendant.

Woodruff, J.

In this case the decree ought to have provided some mode in which, if counsel differed as to the form of the assignment to be executed by the defendants, their difference could be settled by laying before a Justice of this Court the proposed assignment and the objections thereto, that the form might be settled by him. But, in the absence of such a provision, the plaintiff had a right to require the execution of an assignment; and, if the one tendered by him was a proper one, the defendants, under the advice of their counsel, should have executed it, or should have procured and executed some other in proper form, or, if he was in doubt, should have applied to the Court on his own behalf to have th*e form settled. Kevertheless, if, as appears on this motion, the form of assignment had not’been approved by the Court, and the defendants’ counsel advised that it was not drawn in proper form, the defendants should have an opportunity to execute the assignment, and, upon doing so, this motion should be deemed discharged.

As to the moneys collected from the tenants in possession of the demised premises, although I think the conduct of the defend*713ant Hatkorne is by no means free from fault, and that the plaintiff has a clear right to collect them, either from him, or, it may be, from the tenant, a case for an attachment is not made out so as to warrant that mode of compelling the defendants to pay OYer the money.

If fraudulently collected, possibly the defendant may be arrested. If he violated an injunction of the Supreme Court, or a Justice thereof, that Court, or Justice, has power to punish for that. But it would be carrying the idea of contempt of the orders of this Court further than I am now prepared to do, if I should hold that oral notice that the suit was decided in the plaintiff’s favor, without notice of the particulars of the decision,'when the defendant is not under an injunction, and no injunction was ordered by the decision, subjected the defendant to process of contempt when no order or decree had been drawn up or entered, in the face of the defendant’s express denial that he had any notice that the decision entitled the plaintiff to the rents which he collected.

The defendant Hathorne may have five days within which to execute the assignment proposed by the plaintiff; and if, within that time, he execute and duly acknowledge it, the motion shall be discharged, without costs. In default of such execution, a precept may issue against him, to commit him until he execute such assignment and pay (in that event) $10 costs of motion and the fees of the Sheriff, &c.

1 Ordered accordingly.

Hilliker v. Hathorne
5 Bosworth Super. Ct. Rep. 710

Case Details

Hilliker v. Hathorne
Decision Date
May 5, 1860

5 Bosworth Super. Ct. Rep. 710

New York



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