Field v. White — 92 N.Y.S. 848

Majority

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FIELD v. WHITE.

(Supreme Court, Appellate Division, Second Department.

March 17, 1905.)

Headnote

Appealable Okdeb—Subplementaby Peoceedings—Contempt—Obdebs.

In supplementary proceedings against defendant, an order was entered that the motion to punish him for contempt be granted, unless he appear and submit to an examination on a date specified, and pay $10 costs before such examination. A subsequent order denied a motion to resettle the same, and directed that the prior order “stand and remain in full force and effect.” Held, that neither of such orders constituted a determination that accused had committed the offense charged, and that it was calculated to or actually did impair or prejudice the rights and remedies of a party to a contempt proceeding, as prescribed by Code Civ. Proc. $ 2281, and neither was, therefore, an appealable final order.

[Ed. Note.—For cases in point, see vol. 10, Cent. Dig. Contempt, §8 224-226.]

Appeal from Special Term, Kings County.

Action by Frank Harvey Field against Josiah J. White. From an order denying a' motion to resettle a prior order, directing that the prior order stand in full force, and commanding defendant to appear and submit to an examination in supplementary proceedings on a date specified, he appeals. Dismissed.

Argued before BARTLETT, WOODWARD, JENKS, RICH, and MILLER, JJ.

E. H. Benn, for appellant.

G. Burchard Smith, for respondent.

The order appealed from directs a previous order to “stand and remain in full force and effect.” An examination of that previous order shows that it was made upon an application to punish the defendant, as a judgment debtor, for contempt of court, in having failed to obey an order in supplementary proceedings. The order was entered on the 27th day of October, 1904, at a Special Term of the Supreme Court held in Kings county by Mr. Justice Wilmot M. Smith; and the mandatory portion of the order reads as follows:

“Ordered, that the motion to punish the judgment debtor for contempt is granted, unless such judgment debtor appear before me and submit to an examination on the 31st day of October, 1904, at 10 o’clock in the forenoon of that day, and pay the sum of ten dollars ($10) costs to the judgment creditor, Frank Harvey Field, at his office, 44 Court street, in the borough of Brooklyn, city of New York, above named, on or before his appearance for said examination in supplementary proceedings herein.”

It will be observed that the language of this order does not import any clear or positive adjudication adverse to the judgment debtor. The proceeding in which it was made must be deemed a proceeding" to punish a contempt of court, under title 3 of chapter 17 of the Code of Civil Procedure (sections 2266 to 2292, inclusive). Neither the order of November 1, 1904„ which is directly appealed from, nor the order of October 27, 1904, which was thereby continued in' effect, contains any such determination that the judgment debtor has been guilty of contempt, as is required by the title to

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which I have referred. Section 2281 of the Code prescribes the character of the final order which must be made in a contempt proceeding when it is determined that the accused has committed the offense charged, and that it was calculated to, or actually did, defeat, impair, impede, or prejudice the rights or remedies of a party. Neither of the orders now brought up for review is of this character. Neither contains any determination that the accused has committed the offense charged. Neither declares that the contempt was calculated to, or actually did, defeat, impair, impede, or prejudice the rights or remedies of a party; nor, indeed, is there anything contained in the papers brought before us by this record which would have sustained or authorized such a conclusion. The order of October 27, 1904, declaring that the motion to punish the judgment debtor for contempt is granted, upless he appear and submit to an examination in supplementary proceedings, as therein provided for, is really not a final order in contempt proceedings at all, but nothing more than a judicial declaration to the effect that, if the judgment debtor does not appear at a subsequent time fixed by the order, the court will then proceed to adjudge him guilty of contempt. Such an order really does the appellant here no harm. It does not affect any substantial right. Nothing can be done under the order, as it stands, to the detriment of the defendant, without further judicial action. Such action, it is true, may be taken upon proof of his failure to appear and be examined in supplementary proceedings, and pay the $10 costs imposed upon him; but we cannot assume that it will be taken, except upon an order to show cause, which will give him due notice, inasmuch as the granting of a final order under section 2281 of the Code, adjudging him guilty of contempt, could not properly be made without evidence that the defendant’s misconduct was calculated to impair, or actually had impaired, the rights or remedies of the plaintiff; and, as already pointed out, there is no evidence to that effect in these papers.

Our conclusion is that, for the foregoing reasons, the appeal should be dismissed, without costs. All concur.