Joyce v. Holbrook

7 Abb. Pr. 338, 2 Hilt. 94

Opinion

By the Court.

*—Brady, J.

—The plaintiff assuming that the defendant Holbrook, on examination upon proceedings supplementary to execution, had disclosed the facts that he had money and property in his hands belonging to himself, and that he had violated the order supplementary by disposing thereof, applied to Judge Hilton for orders to compel the application of such money and property towards the satisfaction of the judgment, and for an attachment to punish the contempt committed by disobedience to the order supplementary as above stated. Judge Hilton denied both applications. The plaintiff* appeals. The answer to both appeals is the same—namely, that the order directing the application of property and money to the payment of a judgment, and to punish for contempt, are entirely discretionary. Sections 297 and 302 provide that the judge may order the application, and may punish for contempt; and although there are statutes in which the word “ may” is to be construed as “ must,” this is not one. A large degree of discretion must be exercised on all applications to require the appropriation of money and property by a judgment debtor, and there are many instances in which that discretion would be oppressively employed, if the debtor were compelled to surrender property or money which seemed not to be exempt from execution. The proceeding is a summary one, and wherever a doubt exists of the possession and ownership of either property or money, the creditor should enforce his remedy through the receiver, or by levy under execution. Whether the creditor should be left to take this course, is one of the considerations to be entertained in determining whether the application should be granted, with a multitude of others which vary in each case, both in number and importance. And so in regard to punishing for contempt—the right, as a matter of discretion, to refuse to inflict the punishment cannot be well doubted, nor can there be any difference of opinion upon the impropriety of reviewing a discretion exercised in such a manner. This view renders it unnecessary to consider the appeals upon the merits; but were it otherwise, it could be demonstrated that the discretion was justly exercised.

Appeals dismissed with §10 costs in all, to be deducted from the judgment.

Present, Daly, F. J., Brady and Hilton, JJ.