Moffat v. Herman

Headnote

Answr—False verification not punishable as a contempt of court. A false verification of an answer is not punishable as a contempt of court.

This case, which lately excited much interest, was an appeal from the decision of the special term of the city

court of New York, holding defendant guilty of contempt, of court for having verified and put in an alleged false answer, which decision was sustained at the general term. It has now been heard and finally decided in the court of common pleas upon defendant’s appeal. The facts were that the defendants Hirsch and Herman had been sued on. a promissory note, which the complaint alleged was indorsed and transferred to plaintiffs in defendants’ firm name. The note in question purported to be made and indorsed by '"Hirsch & Herman, per J. Hirsch, att’y.” The-defendant Hirsch was not served. The answer of defendant. Herman denied that the defendants duly or otherwise indorsed said note, or transferred it.

In supplementary proceedings on the judgment entered, on default, which were taken against the defendant Herman, it was held on affidavits by Judge Nehrbas, on plaintiffs’ motion to commit said defendant for contempt; that. Herman had been guilty of a contempt of court in swearing to such alleged false answer in the case, and that the answer was untrue, and known to be so to said defendant, and he was adjudged guilty of contempt and fined and thereupon committed to jail until payment of the fine. Herman appealed to the general term, where the decision was affirmed.

An appeal was then taken to the court of common pleas, and there argued at the present general term.

M. L. Townsend, for defendant, appellant, called attention to.Munsel v Oyer and Terminer (3 East. Rep., 561), and State v. Terence (20 The Reporter, 650), where a witness guilty of perjury at the trial term was committed for contempt, but on habeas corpus discharged as only punishable criminally; also Harrington v. Goepp (N. Y. Sup. Ct., first dept. 1 where Judge Goepp had committed a defendant for contempt in having falsely verified the original answer, in conflict with his amended answer, under oath; in which., latter case the supreme court, on appeal, held the commitment of Harrington as for contempt for iris perjury in answering the complaint was illegal, and the committing justice, as judge of a court of inferior jurisdiction, hable in. damages therefor.