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Lawrence v. Harrington

17 N.Y.S. 649 Court N.Y. Gen. Term Decision date 1892-02-08 English

Delivered by Pratt, J.

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p. 649
Lawrence et al. v. Harrington et al.
(Supreme Court, General Term, Second Department.
February 8, 1892.)

Headnote

Contempt—False Justification by Sureties on Appeal.
Sureties in an undertaking on appeal, who swear falsely upon their justification, with intent to deceive the court as to their responsibility, for the purpose of staying execution, which result is accomplished thereby, are guilty, within Code Civil Proc. § 14, subd. 4, of an “unlawful interference ” with the proceedings in the action, impeding the right of the plaintiff to collect the judgment, which constitutes a civil contempt.
Appeal from special term, Westchester county.
Action by William E. Lawrence and James Y. Lawrence against Alvin W. Harrington. Motion by plaintiffs to punish Joseph H. Harrington and Alvin W. Harrington, Jr., for contempt, in giving an insufficient undertaking on appeal by defendant from a judgment for plaintiffs, and falsely justifying as to their responsibility. Plaintiffs appeal from an order denying the motion.
Reversed, and rehearing ordered.
Eor former report, see 1R. Y. Supp. 577.
Argued before Barnard, P. J., and Pratt, J.
Rudd & Hunt, (James M. Hunt, of counsel,) for appellants. Smith & Wellington, (G. B. Wellington, of counsel,) for respondents.

The papers clearly established that Joseph H. and Alvin W. Harrington, Jr., sureties, swore falsely upon a justification as sureties before a notary, with an intent to deceive the court as to their responsibility. They well knew that the purpose was to stay an execution against their father, and that result was accomplished by such false swearing. The facts are too clearly proved to require discussion. It is also clear that the rights of the plaintiffs have been seriously prejudiced by such deceit and false swearing. The plaintiffs were prevented from collecting their judgment, which constituted, under section 14 of Code of Civil Procedure,[1] a civil contempt. It was an interference with the due and orderly progress of the action to its ultimate close, and inpeded the right of the plaintiffs to collect the judgment. King v. Barnes, (Sup.) 4 N. Y. Supp. 247 ; affirmed in 113 N. Y. 476 , 21 N. E. Rep. 182 . It was not essential that the sureties could be convicted of perjury, as their conduct was a fraud upon the plaintiffs and the court, and prevented the course of justice. The distinction between a civil and criminal contempt has been pointed out too often to require any comment. By falsely making the statutory oath, they intended to and did defeat the remedy of the

1 Code Civil Proc. § 14, provides: “A court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding pending in the court maybe defeated, impaired, impeded, or prejudiced, in either of the following cases: * * * (4) A person, * * * for any other unlawful interference with the proceedings therein. ”

p. 650
plaintiffs, and this prejudiced and injured their rights. Egan v. Lynch, 49 N. Y. Super. Ct. 454 ; Foley v. Stone, (Sup.) 9 N. Y. Supp. 194 . The presumption arising from the plaintiffs’ papers is that the plaintiffs were damaged to the amount of the judgment which they were prevented from collecting. Order reversed; with costs and disbursements, and rehearing ordered at special term.

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