De Witt v. Gunn — 34 N.Y.S. 879

Majority

p. 879

DE WITT v. GUNN.

(Superior Court of New York City, Special Term.

May, 1895.)

Headnote

Contempt—Failure to Appear in Supplementary Proceedings.

Under Code Civ. Proc. § 2285, limiting the fine for a civil contempt to the actual injury sustained by any party, a person adjudged guilty of contempt, in not appearing and submitting to an . examination in supplementary proceedings, cannot be- fined the entire amount of the judgment, but only the costs of the proceeding.

Action by De Witt against Gunn. Plaintiff moves to punish defendant for contempt.

Granted.

Martin & Smith, for the application.

The application is to punish the defendant for contempt in not appearing and submitting to an examination pursuant to an adjournment had in supplementary proceedings. The proposed order fines the defendant the entire amount of the judgment ($512.50), and directs his imprisonment till the payment of the fine. Section 2285 of the Code provides that, “where the misconduct proved consists of an omission to perform an act or duty which it is yet in the power of the defendant to perform, he shall be imprisoned only until he has performed it,” and the fine is limited to the actual injury. Fenlon v. Dempsey, 7 N. Y. Supp. 435 ; Id., 50 Hun, 131 , 2 N. Y. Supp. 763 . Counsel will therefore amend the order by fining the defendant $30, the costs of the supplementary proceedings, and directing his imprisonment until he pays said fine and submits to the required -examination.