Vosper v. Monkash

128 N.Y.S. 624

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 21, 1911
• Status: Published

Opinion

LEHMAN, J.

The judgment debtor has been examined in supplementary proceedings, and thereafter the judgment creditor made a motion to punish him for contempt, in that his answers were evasive, contradictory, and contumacious, and a motion to appoint a receiver of his property. The justice sitting in Special Term denied both motions.

[1] I think that the denial of the motion to punish for contempt was proper, and should be affirmed, with $10 costs and disbursements. There is very grave doubt in my mind as to whether or not the debtor has answered the questions truly; but the motion is made upon the theory that his answers are so contradictory and evasive as to constitute practically a contumacious refusal to answer. The debtor meets this issue by showing that he cannot read, that in so far as the answers are contradictory and evasive this fact proceeds from his. failure to understand the questions, and then offers to submit to further examination on these points. The justice could reasonably believe this explanation, and, believing it, he correctly refused to hold that the debt- or was contumacious.

[2] I believe, however, that the creditor was entitled to an order appointing a receiver. The debtor’s examination shows that he owns some machines. His explanation is that this property was purchased by him several years ago, that he gave notes for the price, and that the notes were not regularly paid, so that some balance is still due, and under the contract of sale the owner has a right to come in and take the machines. It seems to me that, even if we accept the debtor’s statement, it is still probable that the debtor has some property in the machines, and under such circumstances a receiver should be appointed.

This order should be reversed, with $10 costs and disbursements, and the motion granted, without costs. All concur.