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Leonard v. Jacobson

57 N.Y.S. 818 Court N.Y. City Ct. Decision date 1899-04-27 English

Delivered by O’DWYER, J.

Contents

Majority

p. 818
LEONARD v. JACOBSON.
(City Court of New York, General Term.
April 27, 1899.)

Headnote

Supplementary Proceedings—Contempt—Fine.
Where there is no evidence that a judgment debtor’s failure to appear for examination, in obedience to an order of court, resulted in loss to the judgment creditor, a fine for contempt should be limited to such amount as would pay the. prosecuting attorney for his costs and expenses.
Appeal from special term.
Action by Alfred D. Leonard against Samuel Jacobson. From an order adjudging defendant guilty of contempt and imposing a fine, he appeals.
Modified and affirmed.
Argued before McCARTHY, C027LA27, and O’DWYER, JJ.
M. D. Stéuér, for appellant.
■ William S. Beers, for respondent.

The finding in the order “that the misconduct of the judgment debtor was calculated to, or actually did, defeat, impair, impede, and prejudice the rights and remedies of the judgment creditor to his actual loss and injury in the sum of $103.86, .the amount of the judgment against the judgment debtor,” is without any support in the evidence submitted upon the motion, and cannot be sustained. Reynolds v. Gilchrest, 9 Hun, 203 ; Donohue v. Lyons, 30 App. Div. 622 , 51 N. Y. Supp. 612 . In the absence of proof that the misconduct complained of did result in loss to the judgment creditor, the order should have been that, such moderate fine be imposed as would pay the prosecuting attorney for his costs and expenses, and that the debtor appear for examination. The debtor concededly failed to appear on the return day, and the evidence fully justifies the finding that he willfully disobeyed the. order requiring him to appear for examination. For this misconduct the order fixed the costs and expenses at $40, and, after a ■ careful examination of the record, we are of opinion that that sum ,1s fair and reasonable.

It follows that the order appealed from should be modified by •seducing the fine imposed to $40, and requiring the judgment debt-er t© appear and submit to an examination, and, as so modified, affirmed^ with costs. All concur.