Richard D. Harris v. George Elliott.

A certified copy of the judgment was served upon the defendant, due demand of payment made, and payment refused.

Otto C. Wierum, Jr., for appellant.

Everett P. Wheeler for respondent.

LANDON, J.-The sole question is as to the power of the Supreme Court upon this record to enforce payment of the judgment by punishment for contempt. We assume the practice to be regular in form. The point of the appellant is that this judgment can be enforced by execution, and, therefore, cannot be enforced by punishment for contempt. He relies upon the provisions of the Code of Civil Procedure. The respondent relies upon such provisions, and also contends that apart from them the Supreme Court has power to punish disobedience to its judgments in proper cases, as part of its general jurisdiction in law and equity, and as a necessary and inherent power in cases omitted in the statutes, to enforce its judgments. This may be so, as to contempts in civil cases, since the statutory restriction as to criminal contempts expressed in Code C. P. (Section 8) is not repeated in Section 14 as to contempts in civil cases. So far, however, as the statutes define and limit the power they must be observed (People ex rel. Fries v. Riley, 25 Hun, 587; People v. Sherwin, 100 N. Y., 351-358).

Passing to inquire whether the statutes provide for the case before us, we find the following Code provisions:

Section 14. "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: "1. An attorney * *

*

or other person, in any

Richard D. Harris v. George Elliott.

manner duly selected or appointed to perform a judicial or ministerial service, for a misbehavior in his office or trust or for disobedience to a lawful mandate

* * *

of the Court."

for the non-pay

ment 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."

Section 1240. "A final 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."

* * * *

Section 1241. "In either of the following cases a judgment may be enforced by punishing him for a contempt of Court:

"1. When the judgment is final, and cannot be enforced by execution, as prescribed in the last section (1240).”

"4. Where the judgment requires the payment of money into Court, or to an officer of the Court." (Excepting cases not material here.) "If the judgment is final, it may be enforced, as prescribed in this section, either simultaneously with, or before or after, the issuing of an execution thereupon, as the Court directs."

act

Section 2266. "In a case specified in Section 14 of this the offense must be punished as pre

* *

scribed in this title."

Section 2268. "Where the offense consists of a neglect. or refusal to obey an order of the Court, requiring the payment of costs, or of a specified sum of money, and the Court is satisfied, by proof, by affidavit, that a personal demand thereof has been made, and that payment thereof has been refused or neglected; it may issue, without notice, a warrant to commit the offender to prison," &c.

Section 1245 requires the county clerk to keep one or more books "in which he must docket, in its regular order

Richard D. Harris v. George Elliott.

and according to its priority, each judgment, which he is required by this article to docket."

Section 1246. "Each clerk, specified in the last section, must, when he files a judgment roll upon a judgment, rendered in a Court of which he is clerk, docket the judgment, by entering, in the proper docket book (among other particulars), (3) The sum recovered, or directed to be paid, in figures."

This judgment directed the payment of a sum of money by the plaintiff to the defendant, and did not direct its payment into Court, or to an officer of the Court. The clerk, therefore, should have docketed the judgment, and being a ministerial officer, could have been thereunto compelled by mandamus.

The fact that the judgment directed payment within five days after the service of a copy of this decree did not make it undocketable (Jacquin v. Jacquin, 36 Hun, 378; O'Gara v. Kearney, 77 N. Y., 423).

That provision probably forbade the issue of an execution until the expiration of the time given to the plaintiff to make payment, and in this respect was not unlike a stay of execution sometimes granted to the defeated party upon a judgment from which he intends to appeal. If, meantime, the plaintiff had paid it he would have been entitled to a satisfaction piece from the defendant (Section 1261).

The judgment being docketed (Section 1365), the defendant at the expiration of the time given could have issued an execution (Devlin v. Hinman, 40 App. Div., 101, aff'd 161 N. Y., 115; People ex rel. Fries v. Riley, supra; Matter of Watson v. Nelson, 69 N. Y., 544; Myers v. Becker, 95 N. Y., 466; Matter of Hess, 48 Hun, 586, 588; Randall v. Dusenbury, 51 How. Pr., 367, aff'd 41 Superior Ct. R., 456.

The defendant argues that the plaintiff, by alleging in his complaint that he had the money in his hands; that the defendant and others asserted an interest in it, the amount of which he did not know and wanted the Court

Richard D. Harris v. George Elliott.

to determine; that he was ready to deposit it in Court, or make such other disposition of it as the Court should direct, thereby in effect brought the fund into Court, and thus with the implied sanction of the Court appointed himself to ministerial service as its custodian for the Court (Section 1241, subd. 4, supra), subject to its order, and, therefore, as such custodian subject to punishment for his disobedience.

But no order was made requiring the plaintiff to deposit the fund in court or appointing him its receiver. He did not bring it into Court. He is not the custodian of the Court. He is a party to the action, still protesting against the justice of this judgment. The defendant's argument might well have been addressed to the trial Court in support of an application for a judgment declaring the plaintiff the trustee of the fund and in actual present possession of it, and requiring him to pay it into Court for the distribution to be provided in the judgment (Section 1241, subd. 4, supra).

For the plaintiff to withold the fund in such a case is very different from refusing to pay a sum which the party, although a trustee, may have lost. Mr. Justice Daniels in Jacquin v. Jacquin (36 Hun, 381), in commenting upon Subdivision 4 of Section 1241, pointed out this distinction. It seems to be just (Gildersleeve v. Lester, 68 Hun, 535; Matter of McBride, 6 App. Div., 376).

We must, however, pass upon the judgment as it is and not upon what it might have been. We cannot enlarge its provisions-certainly not at the expense of the plaintiff's liberty (Ketchum v. Edwards, 153 N. Y., 534).

It is a final judgment directing the plaintiff to pay the defendant a sum of money, in which the plaintiff is indebted to the defendant, docketable, and exclusively enforceable by execution.

The question certified must be answered in the negative, and, therefore, the order must be reversed, with costs, and the motion denied, with costs.

Daniel Mooney et al v. The N. Y. Elevated R. R. and Manhattan Ry.

PARKER, Ch.J.; O'BRIEN, BARTLETT, HAIGHT, MARTIN

and VANN, JJ., concur.

Order reversed, &c.

DANIEL MOONEY ET AL., APPELLANTS, v. THE NEW YORK ELEVATED

RAILROAD

AND THE

MANHATTAN RAILWAY, RESPONDENTS.

NEW YORK COURT OF APPEALS, JUNE TERM, 1900.

S$ 452, 723, 756, 760, 1338.

Rights for trial court-Bringing in new parties and amending pleadings accordingly.

A trial court has power to bring in new parties plaintiff, upon their application and the consent of the plaintiff, and to order the pleadings amended accordingly, without delaying the trial by requiring application for that purpose to be made at a Special Term. Such an order, being discretionary, is only reviewable by the Appellate Division.

When an order of the Appellate Division reverses a judgment of the Special Term, without stating that the reversal was upon the facts, it will be assumed by this court that it was upon the law. (Decided June, 1900.)

Appeal from an order of the Appellate Division, First Department, reversing a judgment of the Special Term

E. W. S. Johnson, for appellants.

Sidney Smith, for respondents.

O'BRIEN, J.-This is the usual action by a property owner against a railroad to restrain its operation, by injunction, and for damages. The action was originally brought in the name of the plaintiff, Daniel Mooney, on the 1st of December, 1890. At that time he was clearly en