Tinkey agt. Langdon.

declaring Langdon in contempt for the cause recited in the order, and imposing a fine of $450 therefor, with thirty dollars costs and expenses of the prc seeding.

This order was made on the return of an order to show cause, the same having been duly served on the debtor, but without his presence and without the appearance of anyone in his behalf. It was taken against the debtor by default. This being so it was competent for him to move to set it aside for irregularity.

The moving party was bound to make a case for the granting of the order on the merits at least, the same as if the debtor had appeared and objected to the proceeding; and if he failed to make his case the debtor might and should move to set the order aside rather than to appeal, if, indeed, he could appeal from an order obtained by default for nonappearance.

It must be borne in mind that the order was not granted because of the violation of an injunction, or restraining order made in proceedings supplementary to execution, but for refusing to convey real property to the receiver, and for refus ing to deliver possession of real and personal property to that officer. Such was the alleged ground of offense, and no other.

First. There is a serious question whether the county judge had any power to order the conveyance and delivery of the property by the debtor. He might appoint a receiver (Code, sec. 298), but had he any authority to direct the conveyance and delivery of the debtor's property to the receiver?

If he may do this the right and power must be found in some statute, as he is confined to the exercise of statutory authority. This right and power rests in the court as an original inherent power, and there need be no statute expressly conferring it. By virtue of this inherent power the court may order the debtor to make conveyance and delivery of his property to the receiver, and may, by proceeding for contempt, compel obedience to such order. The cases are numerous wherein this power has been exercised by the court. But

Tinkey agt. Langdon.

does the county judge who derives his authority from the statute possess like power with the court as regards the subject in hand?

It is said, in Pool agt. Safford (14 Hun, 369), “a judge can appoint a receiver because the statute gives the power (Code, sec. 298), but with the appointment his authority over the matter ends." I find, on examination of the cases, that the decisions are not entirely harmonious on this question, as to the power of a county judge in a case like the present; and, inasmuch as I am of the opinion that the order must be set aside on other grounds, this question will be left to be determined when a case is presented which must turn on its proper disposition. Besides, it seems probable that the question whether the county judge is authorized by law to order a conveyance by the debtor of his property to a receiver, or to direct its delivery and possession to that officer, whether this power does not inhere in the court alone, will be up on the appeal from the order appointing the receiver in this case.

Therefore I deem it better to leave it for consideration at that time.*

Second. The debtor was held in contempt for refusing "to surrender the possession of his lands and real estate, or any part thereof, to said receiver," possession having been demanded of him.

This was one of the grounds of alleged contempt. But he has not been ordered so to do, as I can learn from the papers submitted on this motion.

The order appointing the receiver, directed the debtor to assign and convey his lands and real estate, but it contained no direction to the debtor to surrender its possession.

He could not be held in contempt for omitting or for refusing to do what had not been commanded or required of him. It was said in Watson agt. Fitzsimmons (15 Duer, 629-631) "in refusing to deliver his property to the receiver he (the debtor)

*The appeal was dismissed on a technical point, hence this question was not examined at general term.

Tinkey agt. Langdon.

has not disobeyed any order of the court, for none has been made requiring him so to deliver it. He refused to do that which it was his duty to do, but that was a duty resulting from a change of title to the property, produced by the appointment of a receiver, and not from an order which he had refused to obey. To punish as for a contempt for refusing to deliver property to a receiver, an order requiring such delivery is a necessary prerequisite."

Third. The above remarks under the last point, with the authority there cited, apply also to that part of the order which declares the debtor in contempt for refusing "to deliver possession of his personal property." The order appointing the receiver contained no such requirement.

Fourth. A fine was imposed of $450, with thirty dollars costs, and expenses of the proceedings. Before a fine exceeding $250 could be properly imposed, an inquiry should have been made in regard to the amount of damages caused to the complaining party by reason of the debtor's alleged misconduct. A fine cannot be properly imposed arbitrarily and capriciously, but it must have a basis upon proof of damages or injury (Simmonds agt. Simmonds, 6 Weekly Dig., 263; Ludlow agt. Knox, 7 Abb. [N. S.], 412; Clarke agt. Bennin'ger, 75 N. Y., 344). No inquiry was made before the county judge on granting the order, as to this amount of damages 'caused by the debtor's alleged misconduct. The order was granted, as the county judge states (fols. 19, 20), " solely on the proofs contained in the within papers," to-wit: The motion papers before him, referred to in his order to show cause, and I find nothing in them showing damages or injury caused by the alleged misconduct of the debtor to the amount of $450, or, indeed, to any appreciable amount whatever. The imposition of the fine of $450 seems to be without proof in its support. Nor can this objection to the order of the county judge be overcome by proof now submitted, on this motion to set that order aside.

Other objections besides those above considered were

Hebron Society agt. Schoen.

argued before me on the motion, which, in view of the conclusions above reached, it is unnecessary to examine.

The order of the county judge, adjudging the judgment debtor guilty of contempt, and imposing a fine of $450 therefor, with thirty dollars costs and expenses of the proceedings against him, must be vacated and set aside.

No costs of motion should be allowed to either party, inasmuch as one motion is denied and the other granted.

SUPREME COURT.

THE HEBRON SOCIETY, &c., agt. SAMUEL SCHOEN and others.

The mortgagor of mortgaged premises, who died seized thereof, left by will a legacy to his daughter Cecelia, not making it a charge upon the real estate. He left sufficient personal property to pay the legacies, and bequeathed the "remainder," including the real estate, to his sons. Held, that Cecelia has no interest in the mortgaged premises, and was therefore not a necessary party to this action to foreclose the mortgage. Held, that the fact that the executors have wasted the personal property, and have neglected to pay the legacy, cannot charge the real estate with such payment.

Special Term, October, 1880.

MOTION to set aside sale made under a decree of foreclosure, and to release the purchaser upon the ground that the defendant Cecelia Schoen, a daughter of the mortgagor, being an infant, had not been served with a copy of the summons, and had appeared in the action, not by a guardian ad litem, but by attorney.

Hebron Society agt. Schoen.

VAN VORST, J.-An examination of the papers upon this motion leads me to the conclusion, in opposition to the contention of the counsel for the purchaser at the sale under the judgment of foreclosure, that Cecelia Schoen has no interest in the mortgaged premises, and was, therefore, not a necessary party to the action, and the failure to bring her in properly, is of no moment.

The mortgagor, who died seized of the mortgaged premises, subject to the mortgage, by his last will and testament made certain pecuniary bequests, among which was one to his daughter Cecelia Schoen of $2,000. It is supposed by the counsel appearing for this motion, that the legacy to Cecelia was made a charge upon the testator's real estate. The will does not in terms so charge the realty, and I do not find from an examination thereof that any implication arises of such intention.

The pecuniary legacies are in the first instance payable out of the personal estate (Manson agt. Manson, 8 Abbt. N. C., 123, and cases there cited).

The moving papers do not show that there was any deficiency of personal assets to pay the legacies in full, and, on the other hand, the affidavits in opposition do state that the testator left sufficient personal property to pay the legacies.

That, it appears to me, disposes of the question and rebuts any presumption that the testator meant to burden the real estate with the payment of legacies.

It is charged, however, that the executors have wasted the personal property and have neglected to pay the legacy in question. But such fact cannot charge the real estate with the payment of this bequest. The real estate passes, by a clause in the will, to the testator's sons.

It is true that the gift to the sons is of the "remainder" of all the testator's estate, real and personal, and if the fact had been that there was not personal property sufficient to pay the legacy the question might, perhaps, have arisen (Kalbfleish agt. Kalbfleish, 67 N. Y., 354). But, under the facts above