Majority
p. 314(3 Misc. Rep. 559.) LUEDEKE et al v. COURSEN. (City Court of New York, General Term. May 9, 1893.) Argued before EHRLICH, C. J., and NEWBURGER, J.
Headnote
Contempt—Amount op Fine.Since under Code, § 2284, where no loss or injury is occasioned by disobedience of an order in supplementary proceedings, the fine cannot exceed $250, and since if there is actual loss or injury it must be proven, where, on appeal from an order adjudging defendant in contempt, and fining him $326.58, no assessment of damages appears by the appeal bond, the order will be modified, and the fine reduced to $250.
Appeal from special term.
Action by Charles H. Luedeke and others against Frank Coursen. Defendant, by an order made in supplementary proceedings, was adjudged in contempt, and fined $326.58 and $30 costs, and he appeals. Modified.
Hayman & Rosenthal, for appellant.
Robert Godson, for respondent.
Where no actual loss or injury is produced by the disobedience to an order in supplementary proceedings, the fine imposed cannot exceed $250, and costs. Code, § 2284. If actual loss or injury is produced, the amount thereof must be based upon legal proof of the damage actually sustained. Moffat v. Herman, 116 N. Y. 135 , 22 N. E. Rep. 287 ; Sudlow v. Knox, 7 Abb. Pr. (N. S.) 411; Dejonge v. Brenneman, 23 Hun, 332 ; Clark v. Bininger, 75 N. Y. 344 ; King v. Flynn, 37 Hun, 329 ; Gallagher v. O’Neil, (City Ct. N. Y.) 3 N. Y. Supp. 126 . No such assessment of damages
p. 315
appears by the appeal book, and the order appealed from must therefore be modified by reducing the fine to the statutory limit, $250, and $30 costs, and, as modified, the order appealed from will be affirmed, without costs. See Dejonge v. Brenneman, supra; Railroad Co. v. Ramsey, 45 N. Y. 637 .
Cases cited
- Clark v. Bininger 75 N. Y. 344 p. 314
- Erie Railway Co. v. Ramsey 45 N. Y. 637 p. 315