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In re Canakos

60 Misc. 63 Court N.Y. App. Term English

Delivered by MacLean, J.

Contents

Majority

p. 63
Matter of Panos Kanakos, to be Released from Incarceration in the County Jail of the County of New York. From an order releasing Panos Canakos, Auguste L. Louis appeals.
(Supreme Court, Appellate Term,
July, 1908.)

Headnote

Contempt — Punishment — Imprisonment — Discharge — Sufficiency oí grounds for discharge.
Supplementary proceedings — Disobedience to order or subpoena as contempt— Punishment — Discharge from imprisonment.
Where a judgment debtor is fined for disobedience to an order in supplementary proceedings, he cannot be released from jail without payment of the fine as a matter of grace or mercy on the part of the court; and he should not be released upon his uncorroborated affidavit of his inability to pay the fine, where such inability arose from his mortgaging Ms property after the fine was imposed.
p. 64
Appeal from an order of the City Court of the city of ¡New York releasing said Panos Canakos from imprisonment.
S. S. Myers, for appellant.
S. A. Lowenstein, for respondent.

By virtue of an order, dated February 18, 1908, the judgment debtor was fined the sum of $250, to be paid within fifteen days from the service of a copy of said order, or be committed for disobedience of a prior order to appear and make discovery on oath concerning his property. On February twenty-eighth following, the debtor executed a chattel mortgage in the sum of $1,100 to one'- Peter George, and then, declaring his inability to pay the fine imposed, was committed to the county jail. Thereafter he moved, even a second time, for his discharge under section 2286 of the Code of Civil Procedure, upon his own uncorroborated affidavit, uncorroborated even by a eonclusory affidavit of his attorney, that he is unable to pay the amount of his fine, and was discharged; the court in a memorandum saying, “A judgment debtor who has languished sixty-five days in jail has been sufficiently punished for his failure to obey the mandate of the court.” But “ there is no inherent power in the court to release a defendant merely as a matter of grace or mercy” (Moore v. McMahon, 20 Hun, 44 , 45), and what is disclosed by the record and by the uncorroborated affidavit of the debtor was insufficient to justify his discharge under the Code. Matter of Steinert, 29 Hun, 301 ; Matter of Collins, 39 Misc. Rep. 753 .

The order should, therefore, be reversed, and the debtor should be reimprisoned, unless he gives a sufficient bond to pay, within ten days after service of a copy of this order, with notice of entry thereof.

Gildeesleeve and Seabtjby, JJ., concur.

Order reversed and debtor imprisoned unless he gives a sufficient bond to pay, within ten days after the service of a copy of this order, with notice of entry thereof.

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