Witherbee v. Witherbee

The appellant justifies his refusal to deliver over the property upon the demand of the respondent upon the ground that the bond' tendered to him did not comply with the order. By the terms of the order he was entitled to a bond, ■“ conditioned that said corporation will pay to said executors upon demand any damage or recovery that may be had against said executors on account thereof, or on account of the rents, issues and profits,” etc. Both bonds ran to the. appellant both as receiver and testamentary trustee, and were conditioned that the said corporation “ shall well and truly pay, or cause to be paid, to said obligee upon demand any damage or recovery that may be had against said obligee on account thereof, or on account of the income thereof,” etc.

*185This bond, was not, we think, in strict compliance with the order. The obligee was named both as receiver and as executor and testamentary trustee. A recovery against Murdock as executor and testamentary trustee alone would hardly come within the protection of the bond, which must be construed strictly. Hor is the respondent aided by the approval of the justice who presided at the court when the order was made. In approving the bond he had no power, though he had intended, to modify the terms of the order. The claim that the appellant has waived a bond in strict compliance with the order is not tenable. There nowhere appears any intention to waive any rights which he might have, even if he were by law authorized to make such waiver, and such authority is not clear. The order cannot be justified on the ground that lie still exercised control over the property, as the control is rightfully with him until the property be delivered to his successor. Mor, again, can it be justified on the ground that he is unlawfully interfering with the property because the order states no acts of interference constituting a contempt, nor are any such acts. shown by the affidavits.

If the property was to be delivered over to the corporation of Witherbee, Sherman & Co. only upon the production of the bond required by the order, its possession of necessity remained with the receiver until such bond was delivered. An interference with that possession is unquestionably a contempt of court. Whether the offender shall be punished, however, must rest largely in the discretion of the court. The offense may be technical. It may have appeared to the court that there were strong moral grounds for an interference which was without its permission. We cannot say that, under the circumstances of this case, the Special Term was not justified in its discretion in forgiving the respondent for the contempt committed. As the order does not state upon what ground the motion was denied, it must be sustained if justified upon any ground.

The order punishing the appellant for contempt, from which the first appeal is taken, should be reversed, with ten dollars costs and disbursements.

The order refusing to punish the respondent for contempt in *186interfering with the possession' of the appellant as receiver should be affirmed, without costs of' this appeal to either party, with leave to the appellant to apply to the Special Term for a-restitution of the said property, unless ' a bond be given in compliance with the order" of the court made upon the 14th of July, 1900.

All concurred.

Order reversed, with ten dollars, costs and disbursements, and motion denied, with ten'dollars costs.

Order affirmed, without costs either to party, with leave to the receiver to apply to the Special Term for a restitution of the property, unless a bond be given in compliance with the order of the court.