Westervelt v. Shapiro — 132 N.Y.S. 744

Majority

p. 744

WESTERVELT v. SHAPIRO.

(Supreme Court, Appellate Term.

January 9, 1912.)

Headnote

Appeal and Error (§ 1153^[1] ) — Disposition of Cause — Reversing and Fixing Time — Motion to Resettle Order.

While the better course on appeal in supplementary proceedings, on finding that a fine imposed on a witness for failure to appear was excessive would be to reverse and remit the proceeding for the imposition of a proper fine, unless respondent consents to a reduction, where the court on appeal reversed the action below and imposed a definite fine, it is sufficient as against a motion to resettle the order by fixing a definite fine and to remit for the purpose of fixing an additional fine.

[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4507-4512; Dec. Dig. g 1153.^[1] ]

Supplementary proceedings by Whitley P. Westervelt, judgment creditor, against Isaac Shapiro, judgment debtor. Motion by the judgment creditor to resettle an order of the Supreme Court, Appellate Term ( 132 N. Y. Supp. 338 ), modifying and affirming an order of the City Court of the City'of New York refusing to vacate a subpoena issued to Sophie Shapiro and an order adjudging her in contempt for failure to appear pursuant to the subpoena from which she' appealed. Motion to resettle in form proposed denied.

Argued before GIEGERICH, LEHMAN, and PENDLETON, JJ.

Adam K. Strieker, for the motion.

Herman H. Oppenheimer, opposed.

I have no doubt but that the Appellate Court has power to modify the order by imposing a different fine from that erroneously imposed by the court below, but ordinarily the function of determining the amount is best exercised by the court in which discretion is lodged in the first instance. In this case the amount of $510 was part of the fine actually imposed. The order of this court should have reversed the order of the court below, with costs and disbursements and remitted the proceeding to the court below for the imposition of such fine as lies within the discretion of the court below, unless the respondent stipulates to reduce the fine to the sum of $510. The order cannot, however, be modified by fixing a definite fine, and remitting the proceeding to the Special Term to fix an additional fine.

Motion to resettle in form proposed denied. All concur.