Canda v. Gollner

New York Supreme Court

Canda v. Gollner

26 N.Y.S. 449, 73 Hun 493, 80 N.Y. Sup. Ct. 493, 56 N.Y. St. Rep. 153

CourtNew York Supreme Court

DecidedDecember 1, 1893

StatusPublished

Cited by3 cases

This text of 26 N.Y.S. 449 (Canda v. Gollner) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Canda v. Gollner, 26 N.Y.S. 449, 73 Hun 493, 80 N.Y. Sup. Ct. 493, 56 N.Y. St. Rep. 153 (N.Y. Super. Ct. 1893).

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Opinion

BARNARD, P. J.

The plaintiffs recovered a judgment against Ervin G. Gollner and Ada F. M. Gollner in September, 1892, for $329.38. In October, 1892, an order supplementary to execution was obtained for the examination of the defendants in respect to their property. This order contained the usual words by which all transfers or other dispositions of the property of defendants except exempt properly was forbidden. After the order was served, the defendants severally executed and delivered an assignment of all their property, without preference, under the general insolvent assignment law. The plaintiffs made an application to punish the defendants for a contempt, based upon a disobedience of the supplementary order. This was denied; and this [450]*450appeal presents the question whether a general assignment was a violation of the injunction contained in the supplementary order. It cannot be claimed but that the defendant violated the express words of the order forbidding the transfer. This violation was made by his voluntary act. The plaintiffs were injured by this act. They had taken steps by which they could have had the first lien on the estate, real and personal, of the judgment debtor. Code, § 2469; McCorkle v. Herrman, 117 N. Y. 297, 22 N. E. 948. The old chancery practice is abrogated. If it was not, the rule would not protect the party making an assignment, except such as was necessary to obtain a discharge under the insolvent laws of the state. A voluntary assignment has no such effect. An assignment to obtain a discharge from the debts of a petitioner, under our insolvent laws, is made by the order of the court, and the rule of the court of chancery was aimed at the impropriety of punishing a person for an act done under legal sanction, even when the proceeding was instituted by the debtor’s own petition. . The rule reserves the right to even enjoin such an assignment specially in an injunction. The Code, however, must govern, without regard to the chancery rule. The order should therefore be reversed, with costs and disbursements, and the defendant be adjudged guilty of a contempt of the order, with $10' costs.

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BARNARD, P. J.

The plaintiffs recovered a judgment against Ervin G. Gollner and Ada F. M. Gollner in September, 1892, for $329.38. In October, 1892, an order supplementary to execution was obtained for the examination of the defendants in respect to their property. This order contained the usual words by which all transfers or other dispositions of the property of defendants except exempt properly was forbidden. After the order was served, the defendants severally executed and delivered an assignment of all their property, without preference, under the general insolvent assignment law. The plaintiffs made an application to punish the defendants for a contempt, based upon a disobedience of the supplementary order. This was denied; and this [450]*450appeal presents the question whether a general assignment was a violation of the injunction contained in the supplementary order. It cannot be claimed but that the defendant violated the express words of the order forbidding the transfer. This violation was made by his voluntary act. The plaintiffs were injured by this act. They had taken steps by which they could have had the first lien on the estate, real and personal, of the judgment debtor. Code, § 2469; McCorkle v. Herrman, 117 N. Y. 297, 22 N. E. 948. The old chancery practice is abrogated. If it was not, the rule would not protect the party making an assignment, except such as was necessary to obtain a discharge under the insolvent laws of the state. A voluntary assignment has no such effect. An assignment to obtain a discharge from the debts of a petitioner, under our insolvent laws, is made by the order of the court, and the rule of the court of chancery was aimed at the impropriety of punishing a person for an act done under legal sanction, even when the proceeding was instituted by the debtor’s own petition. . The rule reserves the right to even enjoin such an assignment specially in an injunction. The Code, however, must govern, without regard to the chancery rule. The order should therefore be reversed, with costs and disbursements, and the defendant be adjudged guilty of a contempt of the order, with $10' costs.

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Bluebook (online)

26 N.Y.S. 449, 73 Hun 493, 80 N.Y. Sup. Ct. 493, 56 N.Y. St. Rep. 153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/canda-v-gollner-nysupct-1893.

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