Lippert v. Olejniczak — 3 N.Y.S. 6

Majority

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Lippert v. Olejniczak.

(Superior Court of Buffalo, General Term.

December 3,1888.)

Headnote

Contempt—Disobeying Restraining Order.

Where the judgment debtor, after service of the order restraining him from disposing of his property, pays out sums exceeding the amount of the judgment and costs of the supplementary proceeding, he is properly adjudged guilty of contempt,' and ordered to pay a fine of the amount of such judgment and costs, and, on failure to pay the fine, an order directing a warrant of attachment to issue is proper.

Appeal from special term; Hatch, Judge.

Proceedings supplementary to execution in the action of Frank Lippert against Bartlomiz Olejniczak. From an order adjudging defendant in contempt, and another directing a warrant of attachment to issue, defendant appeals.

L. W. Diemer, for appellant. F. C. Randall, for respondént.

Two appeals from orders made at special term by Judge Hatch, —one adjudging the defendant guilty of contempt, and ordering him to pay a fine of $320.29, being the amount of the judgment and costs of the proceeding, and when paid to be in satisfaction of the judgment; the other from an order directing a warrant of attachment to issue for failure to comply with the first order. If the first order is authorized, the second must stand. The court had power to make the order punishing the defendant-for disobedience of its mandate restraining him from disposing of his property; and the only question to determine is; did the sums which the defendant had paid out after the service of the order on him amount to as much as the sum fixed as a fine in the order? We think they did. It is simply a matter of computation. The order was served on the defendant on the 21st day of May, 1888, and the examination before the referee took place May 26, 1888. He testified that when the order was served on him Bork owed him, and which he collected and paid out, $100; when order was served, he had on his person $30 or $40; from Chojnacki, $50; Bork & IClaus, $200; and of Rosehiaj, $150, for work done on his building before the date of the service of the order. This makes, in all, $530, received by him after the 21st day of May, 1888, and as appears was paid out in violation of the order appointing the referee. The amount of the fine is not excessive, but is fully warranted by the amount of the judgment, and no error was committed in making the or

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der. The order appealed from should be affirmed, with $10 costs, and disbursements.

Beckwith, C. J„ .concurs. Hatch, J., did not sit in the case.