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Sverd v. Mostel

Supreme Court of New York, Appellate Division

December 15, 1953

In the Matter of CLARA SVERD, Respondent,
v.
SAMUEL MOSTEL, Appellant. KATHRYN C. MOSTEL, Third-Party Appellant.

APPEAL from an order of the Supreme Court at Special Term (SAYPOL, J.), entered July 1, 1953, in New York County, which granted a motion by respondent, judgment creditor, for an order adjudging the third-party appellant in contempt and directing her to pay to respondent a certain sum of money.

COUNSEL

Page 129

R. Lawrence Siegel of counsel (Gerald P. Halpern with him on the brief; Pepper & Siegel, attorneys), for appellants.

Harry W. Davis for respondent.

BERGAN, J.

The judgment creditor is the judgment debtor's former wife; the third-party appellant who has been adjudged guilty of a contempt in proceedings supplementary to execution is the judgment debtor's present wife. The judgment debtor is an actor whose earnings are large but irregular.

The basis for the order adjudging her in contempt is that after the third-party subpena had been served on her and she thereupon became enjoined by operation of section 781 of the Civil Practice Act from transferring or making any disposition of the judgment debtor's property in her possession or paying over any moneys belonging to him, she nevertheless proceeded to pay out the debtor's money in her bank account in plain disregard of the restraint imposed on her by operation of the statute.

The theory of her claimed right to continue to dispose of the property in her possession in avoidance of the restraint imposed by the subpena is that this money was used by her for the necessities of the husband and thus was exempt from the judgment creditor's seizure or interference. (Civ. Prac. Act, ยง 792, subd. [c].)

If we assume that the protection of the funds she held is available to the third party on the basis of the judgment debtor's necessities, the third party was nevertheless under some obligation to apply to the court to release the fund by appropriate application at an appropriate time; and she was not at liberty to disregard the restraint and dispose of the fund as though the subpena had no significance.

A party who decides to take the chance that process served on him may be entirely void, and hence not dangerous if disregarded, must be prepared also to take the consequence that follows if the judicial ruling on validity of process ultimately goes against him. No system of law would remain workable if everyone had the right to exercise a safely independent judgment whether he would pay attention, or not, to the force of judicial process.

It is true enough that punishment will not follow if the process is void and is issued without jurisdiction. In Hancock v. Sears (93 N.Y. 79) the debtor was upheld by the court in his decision to apply his earnings to his necessities notwithstanding a restraining order of the County Judge in supplementary proceedings.

Page 130

But this was because the court decided that the restraint could not in the circumstances of that case attach to the judgment debtor's own earnings which he used to obtain necessities to sustain himself and his family. The case was decided on narrow grounds and on the failure of the judgment creditor to follow statutory safeguards in obtaining the injunction but rather by an evasion of those safeguards (p. 81).

The third-party appellant here has not shown, as she has the plain burden of showing in justification of her disregard for the injunctive process, that the very funds she controlled fall so clearly and indisputably within the protection of section 792 of the Civil Practice Act that the process which reached her did not reach the money she controlled. It could perhaps be found that she expended all or substantially all of the $3,168.05 of the debtor's money in her bank account for necessities for the debtor and his family between September 23, 1952, ...


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