Kutcosky v. Kutcosky

153 A.D. 526, 138 N.Y.S. 263, 1912 N.Y. App. Div. LEXIS 9313

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 1912
• Status: Published

Opinion

Per Curiam:

This order arose in the same supplementary proceedings in which we reversed an order in contempt proceedings in Feinberg v. Kutcosky (147 App. Div. 393).

The defendants are ignorant Polanders, without property. The defendant Mary rents a house for three dollars per month and keeps several boarders. The boarders lodge upstairs in a common room; she and her family lodge in the rooms below, she apparently doing all the work. The boarders were under contract to pay sixteen dollars a month, payable on the fifteenth day of each month. The supplementary order was served December thirty-first. The husband is a hard working man. He pays his earnings to his wife. From money paid to her by her husband and the boarders, January fifteenth, she paid the butcher and storekeeper who furnished supplies for herself and family. It does not appear that the defendants were informed that there was a restraining order in the papers which were served on them, and it does not appear that the order was read to them. On the return day of the original order the defendant John appeared, traveling thirty-seven miles from his residence to the place where it was returnable. His wife was at home with her youngest child, who was but a few weeks old. The plaintiff’s husband, who speaks and understands the Polish language indifferently, acted as interpreter on the examination when John was sworn. On the adjourned day when Mary appeared another interpreter served. • On the first examination it appears from the translation by the interpreter that John swore that he was running the boarding house and that he received the money from the boarders and paid it out. On the second examination John swears that he was not correctly interpreted; that he swore to nothing of the kind and that he did not receive or pay out any of the money from the hoarders and had nothing to do. with the boarders; that the alleged interpreter did not correctly report his answers and threatened to imprison him unless he signed some papers which were produced and which were not explained or understood by him. The interest of the alleged interpreter is so great that when the defendant denies the correctness of the interpretation, the court, in a proceeding like this, will not place great reliance upon the interpretation. The order against John is, therefore, contrary to the evidence.

The order allows thirty dollars attorney’s fees in supplementary proceedings; twenty dollars referee’s fees for two days; ten dollars to the stenographer two days; five dollars to the stenographer for preparing papers upon the application and five dollars to the stenographer for transcript of minutes; two dollars, the expense of serving papers, and ten dollars for the attorney upon the application. The evidence upon the first day is printed in the record by question and answer and is found in twenty-nine folios; the second day’s examination by question and answer occupies seventy-one folios. The costs and allowances are excessive and unreasonable. There is nothing to indicate that either of the defendants knew they were restrained from receiving or paying out money. The defendant Mary, who received and paid out the money did it openly, apparently thinking she had the right so to do, and her right so to do is sustained by authority. (Kroner v. Reilly, 49 App. Div. 41; First National Bank of Auburn v. Beardsley, 8 Wkly. Dig. 7.) The moneys paid.to the butcher and the storekeeper were entirely the proceeds of the work of Mary during the preceding thirty days and the supplies furnished by those tradesmen. The moneys apparently went to the parties having the most equitable claim to them. . The plaintiff’s right to reach those moneys is at least so questionable that it should • not be enforced in contempt proceedings.

The finding that the defendants, received and disbursed the money in violation of the order served is not sustained by the evidence. The order is oppressive and the proceedings have been oppressive and unreasonably burdensome. The order should, therefore, be reversed upon the law and the facts, with costs.

All concurred.

Order reversed upon the law and facts, with ten dollars costs and disbursements.