Hyperlawhypertext legal database Nuccio v. Porto 72 A.D. 88

← Cases

Nuccio v. Porto

72 A.D. 88 Court N.Y. App. Div. English

Delivered by *89 Laughlin, J.:

Contents

Majority

p. 88
Domenico Nuccio, Plaintiff, v. Domenico Porto, Respondent. Francis L. Corrao and Giuseppe Ruggio, Appellants.

Headnote

Contempt—attorney procuring sureties, one insolvent and the other fictitious, to an undertaking on arrest — he and the surety are both guilty of contempt.
Where the attorney for the plaintiff in an action of libel procures an order for the arrest of the defendant, upon furnishing an undertaking signed by two sureties, with knowledge that one of such sureties is not worth sufficient property to warrant him in becoming a surety and that the other surety is fictitious, the attorney is guilty of misconduct While acting as an officer of the .court, and may, under subdivisions 2 and 8 of section 14 of the Code of Civil Procedure, be properly adjudged guilty of contempt.
The surety who has not sufficient property to warrant him in becoming a surety and who, as is found, testified falsely upon his justification for the purpose of deceiving the court, may be adjudged guilty of contempt under subdivisions '2 and 4 of section 14 of the Code of Civil Procedure, as such false justification constitutes an unlawful interference with the progress of the action.
Appeal by Francis L; Oorrao and another from an order of the Supreme Oourt, made at the Hew York Special Term and'entered in the office of the clerk of the county of Hew York on the i2th day of Hovember, 1901, adjudging them guilty of contempt of" court.
Francis L. Gorrao, for the appellants.
John Palmieri, for the réspondent.

This is an action for libel. The appellant Corrao was the attorney of record for the plaintiff and he procured an order of arrest, furnishing an undertaking with appellant Ruggio and another as sureties. The defendant was taken into custody on the order of arrest and subsequently released on bail. The order of arrest was vacated on defendant’s motion, and he thereupon brought an action in the City Court against the sureties on the undertaking to recover the damages sustained by reason of the arrest. He obtained judgment by default, and after the issue and return of an execution unsatisfied, proceedings supplementary to execution were instituted. Upon the examination facts developed indicating that Ruggio was worthless and the other surety was fictitious. A motion was then made to punish the plaintiff, the attorney and the sureties for contempt of court in having knowingly procured the approval of an undertaking with worthless and fictitious sureties. The alleged mythical surety was not served, and could not be found. After hearing the affidavits, both in favor of and in opposition to the motion, the learned judge presiding determined that it was a case where common-law proof should be required, and he directed that the parties and their witnesses appear before him for examination. The plaintiff and the appellants and all witnesses produced by either of them were fully examined upon the hearing. The evidence fairly justified the inference that the appellant surety was not worth sufficient property to warrant his justifying as a surety; that the other surety was fictitious or insolvent, and that these facts were known to. the plaintiff’s attorney who procured the sureties and the approval of the undertaking. The contempt proceedings were regular and the fine imposed was the amount of the judgment obtained by the defendant against the sureties, together with ten dollars costs of the motion.

The court doubtless has inherent power to punish an attorney for misconduct while acting as an officer of the court, and such authority is expressly conferred by the Code of Civil Procedure. (Code Civ. Proc. § 14, subds. 2, 8; Matter of H., an Attorney, 87 N. Y. 521 .) There can be no question, therefore, but that the attorney was properly adjudged guilty of contempt. The statutory authority, however, to punish a surety who is Hot a party to the action is not

p. 90
very extensive. The court has found, and we think the determina- • tion is supported by evidence, that the surety testified falsely for the purpose of deceiving the court. The undertaking was executed, furnished and accepted as a “ proceeding of the court,” for upon it the court acted in granting the order of arrest, and the false justification of the surety in an undertaking which was to be the basis of an order of arrest constituted an unlawful interference with the progress of the action. (Code Civ. Proc. § 14, subds. 2, 4; Matter of Hay Foundry & Iron Works, 22 App. Div. 87 ; Lawrence v. Harrington, 63 Hun, 195 ; S. C., 133 N. Y. 690 .) This authorized and fully justified punishing him for contempt.

There is and can be no question but that the fine was justified as to the amount if the appellants were guilty of contempt. It follows, therefore, that the order should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements,

Cases cited