Saggese v. Virgilio — 106 N.Y.S. 1100

Majority

p. 1100

SAGGESE v. VIRGILIO.

(Supreme Court, Appellate Term.

November 29, 1907.

Headnote

Execution—Supplementary Proceedings—Perjury—Contempt.

False swearing by a judgment debtor on his examination in supplementary proceedings concerning his property is neither a civil nor a crimT inal contempt, subjecting him to fine and imprisonment, especially where it does not appear that a right or remedy was impaired, impeded, or-defeated.

p. 1101

Appeal from City Court of New York, Special Term.

Supplementary proceedings by Elíseo Saggese, judgment creditor, against Salvatore Virgilio. From an order of the New York City Court, punishing defendant for contempt for false swearing, he appeals. Reversed.

Argued before GILDERSLEEVE, P. J., and LEVENTRITT and EREANGER, JJ.

Katz & Greenberg, for appellant.

Jacob H. Corn, for respondent.

This is an appeal from an order punishing the defendant for contempt of court for having, as alleged, committed perjury in testifying concerning his property in supplementary proceedings. The case of Bernheimer v. Kelleher, 31 Mise. Rep. 464, 64 N. Y. Supp. 409 , seems to cover the case at bar, and calls for a reversal of this order. It was there held by this court that:

“False swearing by a judgment debtor, committed, upon his examination in supplementary proceedings, touching the disposition of his property, is neither a civil nor a criminal contempt, and he cannot be punished therefor by fine and imprisonment, especially where it does not appear that a right or remedy was impaired, impeded, or defeated.’’

Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs.