Steele v. Gunn — 19 N.Y. St. Rep. 654

Majority

p. 654

Francis E. Steele, v. Robert Gunn et al., Milton Ballard, App’lt, Robert Gunn, by his Guardian ad litem, Resp’t.

(Supreme Court, General Term, Fourth Department,

Filed July, 1888.)

Headnote

¡Contempt of court—What punishable as—How punishable-‘-Code Crv. Pro., §§ 14, 2284, 2285, 2286.

By authority of Code Civ. Pro., § 14, a court of record is empowered, to punish by fine and imprisonment or either,-a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded or prejudiced, in either of the following cases: First, ah attorney,counsellor * * * or other person in any manner duly selected or appointed to perform a judicial or ministerial office, fra misbehavior in his office or trust, or for a willful neglect or violation of duty therein; or for disobedience to a lawful mandate of the court, or of a judge thereof, or of an officer authorized to perform the duties of such a judge. By Code Civ. Pro., •§ 2284, it is provided that where it is not shown that an actual loss or injury has been produced, a fine must be imposed, not exceeding the amount of the complainant’s costs- and expenses, and two hundred and fifty dollars in addition-thereto, and it is further provided that wliere the misconduct proved consists of an omission to perform an act or duty which it is yet in the power of the offender to perform, he shall be imprisoned until die has performed it, and paid the fine imposed. The provisions of the Code Civ. Pro. §§ 2284, 2285, are by § 2286, made applicable to proceedings under § 14. An attorney appointed as referee to sell premises under a decree of foreclosure and sale, sold the premises and executed and delivered deeds thereof to the purchasers. After paying the mortgage debt and costs, there remained in his hands a surplus. He neglected to file a report •of sale or to pay the surplus in his hands to the county treasurer. A special term order was made on notice to the referee requiring him within ten ■days after personal service on him of a copy of the order, to pay such surplus to the treasurer, file his report and iiay the costs of the motion personally A certified copy of the order was served personally upon the referee, and upon his failure to comply with the terms thereof, a further order was procured, requiring him to show cause before a specified special term, why he should not be punished for contempt because of such disobedience, and after hearing, it. was adjudged that the referee was guilty of the contempt charged and a fine imposed upon him, and a further fine of the costs and expenses of the proceeding and the sheriff’s fees to be paid to the attorney for the moving party, and that he should be committed to the county jail until he should pay such fine and comply with the terms of the former order. Held, that the order adjudging the referee to be guilty of contempt and imposing the fine upon him, and ordering the commitment, was proper.

M. Ballard, for app’lt; George S. Hooker, for resp’t.

A decree of foreclosure was granted in this .action, and the appellant, an attorney of this court, was appointed a referee to sell the mortgaged premises. The premises were sold by him, and deeds were executed and delivered to the purchasers. After paying the mortgage debt and the plaintiff’s costs, there remained in the appeilant’s hands of the purchase price received by him about the sum of $185 or $200. The appellant neglected to pay the surplus in his hands to the county treasurer, or to file his report of sale.

p. 655

On the 14th day of October, 1887, a special term of this court, on notice to the appellant, made an order requiring-him within ten days after personal service upon him of a copy of such order to pay such surplus to the treasurer to file his report, and to pay the guardian of the respondent-$10 costs personally. A certified copy of this order was served on the appellant personally October 21, 1887, and the respondent’s guardian demanded of the appellant that-he file his report, pay such surplus to the treasurer, and pay the $10 costs. The appellant complied with none of' the requirements of that order. On November 29, 1887, a further order was procured requiring the appellant to show cause, before a special term of this court appointed to beheld at Herkimer, December 13, 1887, why he should not-be punished for contempt in disobeying the order of October 14th. Upon the return of such order to show cause, the appellant appeared by attorney. After hearing said motion, the court made an order whereby it was adjudged that the appellant was guilty of the contempt charged, and that it was calculated to, and actually did, defeat, impair, impede and prejudice tire rights and remedies of the respondent; and it was then ordered that a-fine of $25 be imposed upon the appellant for his misconduct, and in addition thereto, and as a further fine, that he should pay to George S. Hooker, attorney and guardian ad litem for said Robert Gunn, the costs and expenses of the proceeding, amounting to the sum of $34 and sheriff’s fees; and that he should si and committed-to the county jail of Jefferson county until he should pay such fine and comply with the terms of the former order. From the last-order Ballard appealed.

“ A court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced, in either-of the following cases:

1. An attorney, counsellor, clerk, sheriff, coroner or other person in any manner duly selected or appointed to perform a judicial or ministerial service, for a misbehavior in his’ office or trust, or for a willful neglect or violation of duty therein; or for disobedience to a lawful mandate of the court, or of a judge thereof, or of an officer authorized to perform the duties of such a judge.” Code Civil Pro., § 14.

“ And where it is not shown that such an actual loss or injury has been produced, a fine must be imposed, not exceeding the amount of the complainant’s costs and expenses, and $250 in addition thereto, and must be collected and paid in like manner.” Code Civil Pro., § 2284.

p. 656

“Where the misconduct proved consists of an omission to perform an act or duty, which it is yet in the power of the offender to perform, he shall be imprisoned only until he has performed it, and paid the fine imposed. In such a case, the order and the warrant of commitment, if one is issued, must specify the act or duty to be performed, and the sum to be paid.” Code, § 2285.

The provisions of sections 2284 and 2285 are applicable to proceedings under, section 14. Code Civil Pro., § 2266.

It seems quite manifest that the proceedings, which resulted in the order appealed from, were justified by the provisions of the Code, and that the order should be sustained. People ex rel. Duffus v. Brown, 46 Hun, 320 ; 12 N. Y. State Rep., 454.

No error in this proceeding is claimed or pointed out by the appellant which would justify a reversal of the order appealed from. We think the order was proper, regular and justified by the statute, and that it should be affirmed, with costs.

Order affirmed, with ten dollars costs and printing disbursements.