(dissenting). I would affirm. The judgment here amounts merely to a direction for a recovery of converted funds. As a money judgment in conversion, it is not enforcible by contempt proceedings.
The general power of the Supreme Court to punish as a contempt the disobedience to its judgments in actions, whether in law or in equity, is limited by statute. Even though a judgment expressly directs the payment by the defendant of a certain sum of money, the judgment creditor’s remedy to enforce the judgment is to proceed by execution and not by contempt proceedings. This.was the general rule under the Civil Practice Act and is still the rule. (Judiciary Law, § 753; Civ. Prac. Act, § 505; CPLB 5105; 7 Carmody-Wait, N. Y. Prac., §§ 33, 34, p. 553, and vol. 8, §§ 3-5, p. 360.)
There is a statutory exception authorizing the enforcement of a judgment by contempt proceedings where the judgment “ requires a trustee or person acting in a fiduciary relationship to pay a sum of money for willful default or dereliction of his duty”. (CPLR 5105, subd. 2.) But this is not such a judgment.
" It is immaterial that the defendant may have teen “ a trusted employee” who embezzled funds of his employer or that he could have been held as “ a trustee ex maleficio and accountable as such” to his employer, as suggested in the majority opinion. There was no determination or finding that the defendant was such an employee or that he was accountable as a trustee ex *403maleficio. It does not appear that the defendant was entrusted with a specific or a particular fund or sum of money by his employer, nor is there any direction that he should account for and pay over such a fund or sum. Furthermore, the defendant did not stand in any fiduciary relationship to the plaintiff, who, as the surety upon a fidelity bond, is seeking reimbursement merely for the sum which it has paid to it's insured. There was no proof that the defendant ever held particular funds or property as trustee, constructive or otherwise, for the benefit of the plaintiff surety corporation.
The judgment, including recitals, amounts merely to a direction that the defendant shall pay to the plaintiff a sum of money which he has converted; and, as such, is nothing more or less than a money judgment rendered, as expressly stated, with the consent of the defendant. It does contain a recital that “it is alleged ” that the defendant embezzled funds while acting in a fiduciary capacity, but there is no statement in the judgment or finding by the court that the defendant did willfully breach a fiduciary duty in converting funds received in a fiduciary capacity. Therefore, the enforcement of the provisions of the judgment may be had only by execution. (See CPLR 5105; Carmody-Wait, N. Y. Prac., supra; 5 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 5105.01; Pieper v. Renke, 4 N Y 2d 410; Harris v. Elliot, 163 N. Y. 269; Serviss v. Torino, 263 App. Div. 722; Hennig v. Abrahams, 246 App. Div. 621; Wasserman v. Lupis, 223 App. Div. 773.)
If this is a proper case for the direction that the defendant make installment payments on account of the judgment debt, there are adequate legal remedies. (See CPLR 5231.)
Finally, there is no justification for holding the defendant in contempt without affording him the opportunity of a hearing on the question of Ms ability to pay and the willfulness of Ms alleged failure to comply with the provisions of the judgment.
Bqtein, P. J., Stevens and Staley, Jj., concur with Bkeitel, J.; Eagee, J., dissents in opinion.
Order entered on May 12, 1965 denying plaintiff’s motion to punish defendant for contempt modified, on the law, on the facts, and in the exercise of discretion, with $30 costs and disbursements to plaintiff-appellant, to the extent of directing defendant with appropriate sanctions to make installment payments of $50 per month on account of the judgment debt, subject to revision from time to time as the circumstances of defendant may change. Settle order on notice.