Devlin v. . Hinman

New York Court of Appeals

Devlin v. . Hinman

55 N.E. 386, 161 N.Y. 115, 15 E.H. Smith 115, 1899 N.Y. LEXIS 930

CourtNew York Court of Appeals

DecidedNovember 28, 1899

StatusPublished

Cited by21 cases

This text of 55 N.E. 386 (Devlin v. . Hinman) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Devlin v. . Hinman, 55 N.E. 386, 161 N.Y. 115, 15 E.H. Smith 115, 1899 N.Y. LEXIS 930 (N.Y. 1899).

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Opinion

Per Guriam.

The learned Appellate Division gave the defendant leave to appeal to this court from its order of *118 reversal, and certified that “ the following question of law * * * ought to be reviewed by the Court of Appeals: * * * ‘Is a party to an action punishable as for a contempt by commitment or by striking out her answer, or by both, for failure to comply with an order of restitution directing her to restore^ by payment to the county treasurer, money obtained by her from the depository of the court, under and by virtue of a judgment previously rendered in her favor and thereafter reversed on appeal, or is such order of restitution enforceable only by execution against her property ? ’ ”

This is a compound question, alternative in form, which cannot be categorically, answered. While neither Constitution nor statute expressly requires, convenience, suggests that each question certified to this court by the Appellate Division be separately stated, so that it can be answered yes or no.

We have decided to affirm the order appealed from upon the opinion of the court below, and, dividing the question into two parts, to answer them as follows :

(1) “ Is a party to an action punishable as for a contempt by commitment or by striking out her answer, or by both, for failure to comply with an order of restitution directing her to restore, by payment to the county treasurer, money obtained by her from the depository of the court, under and by virtue of a judgment previously rendered in her favor and thereafter reversed on appeal ? ”

(2) “Is such order of restitution enforceable only by execution against her property ? ”

Confining these questions to the facts of this case, we answer the first in the affirmative and the second in the negative.

- The order should be affirmed, with costs, and the questions certified answered as indicated in this memorandum.

All concur.

Order affirmed.

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Per Guriam.

The learned Appellate Division gave the defendant leave to appeal to this court from its order of *118 reversal, and certified that “ the following question of law * * * ought to be reviewed by the Court of Appeals: * * * ‘Is a party to an action punishable as for a contempt by commitment or by striking out her answer, or by both, for failure to comply with an order of restitution directing her to restore^ by payment to the county treasurer, money obtained by her from the depository of the court, under and by virtue of a judgment previously rendered in her favor and thereafter reversed on appeal, or is such order of restitution enforceable only by execution against her property ? ’ ”

This is a compound question, alternative in form, which cannot be categorically, answered. While neither Constitution nor statute expressly requires, convenience, suggests that each question certified to this court by the Appellate Division be separately stated, so that it can be answered yes or no.

We have decided to affirm the order appealed from upon the opinion of the court below, and, dividing the question into two parts, to answer them as follows :

(1) “ Is a party to an action punishable as for a contempt by commitment or by striking out her answer, or by both, for failure to comply with an order of restitution directing her to restore, by payment to the county treasurer, money obtained by her from the depository of the court, under and by virtue of a judgment previously rendered in her favor and thereafter reversed on appeal ? ”

(2) “Is such order of restitution enforceable only by execution against her property ? ”

Confining these questions to the facts of this case, we answer the first in the affirmative and the second in the negative.

- The order should be affirmed, with costs, and the questions certified answered as indicated in this memorandum.

All concur.

Order affirmed.

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Bluebook (online)

55 N.E. 386, 161 N.Y. 115, 15 E.H. Smith 115, 1899 N.Y. LEXIS 930, Counsel Stack Legal Research, https://law.counselstack.com/opinion/devlin-v-hinman-ny-1899.

Opinion

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