Squires v. Smith

137 N.Y.S. 1144

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 23, 1912
• Status: Published

Opinion

SEABURY, J.

The judgment debtor, a man 77 years old, in failing health and of poor memory, appeals from an order of the City Court adjudging him guilty of contempt for alleged “evasive answers” to questions put to him upon his examination in proceedings supplementary to execution. The order adjudging the judgment debtor in contempt recites: “That on said examination the said judgment debtor willfully refused to make proper answers to material questions propounded to him on said •examination and willfully refused to disclose facts within his knowledge as to his financial condition and as to his transfers of stock to one Lizzie Borgers and one Dora Scott and willfully refused to state the consideration upon which said transfers were made.” The alleged “evasiveness” consisted in the statement of the judgment debtor that he did not remember certain details of a stock transaction in which he was engaged several years before. While it may be, as was held in Matter of Becker v. Gerlich, 72 Misc. Rep. 157, 129 N. Y. Supp. 614, that the general power of the court which js reserved in subdivision 8 of section 753 of the Judiciary Law (Consol. Laws 1909, c. 30), allows the punishment as for a civil contempt -of one who denies knowledge or recollection of matters concerning which it is incredible that he has forgotten, we are satisfied, from a review of the record before us, that this is not such a case. We think that the discretion of the learned court below was not exercised properly in this case, and that the order should be reversed. Order reversed, with §10 costs and •disbursements, to be applied on account of the judgment. All concur.