Devereaux v. Clifford — 42 N.Y.S. 687

Majority

p. 687

DEVEREAUX et al. v. CLIFFORD.

(Supreme Court, Appellate Division, Third Department.

December 18, 1896.)

Headnote

1. Contempt—What Constitutes.

A judgment defendant who does not appear for examination, as required by an order in supplementary proceedings, is in contempt.

-2. Same—Punishment.

Where a judgment defendant is in contempt by failing to appear for examination pursuant to an order in supplementary proceedings, a fine of $371.-15, the amount of the judgment, is unauthorized, in the absence of evidence that his disobedience caused actual loss or injury to plaintiff beyond the costs and expenses of the proceeding to punish him. Code Civ. Proc. § 2284.

p. 688

Appeal from special term, Saratoga county.

Action by Charles J. Devereaux and others against Timothy A. Clifford, in which there was a judgment for plaintiffs. From an order convicting defendant of contempt, and fining him $371.15, the amount of the judgment, for his failure to appear for examination under an order in supplementary proceedings, he appeals.

Modified.

Argued before PARKER, P. J., and LARDON, HERRICK, PUTNAM, and MERWIN, JJ.

James F. Swanick, for appellant.

Nash Rockwood, for respondents.

The conviction for contempt was proper, but, in the absence of evidence that the defendant’s disobedience occasioned any actual loss or injury to the plaintiffs beyond the costs and expenses of this proceeding to punish him, the fine to the amount of the judgment was not authorized. Code Civ. Proc. § 2284; Coal Co. v. Hecksher, 42 Hun, 534 .

Order affirmed as to the conviction, reversed as to the fine, and proceeding remitted to the special term, as in the case cited, for further order in respect to the fine, with $10 costs and disbursements to appellant. All concur.