Moffat v. Herman — 26 N.Y. St. Rep. 328

Majority

p. 328

Henry C. Moffat et al., App’lts, v. George Herman, Impleaded, Resp’t.^[1]

(Court of Appeals, Second Division,

Filed October 8, 1889.)

Headnote

Contempt — Amount of fine fob.

The imposition of a fine larger than $250 and costs as a punishment for contempt under § 14, Code Civ. Pro., in the absence of proof of the extent of the loss sustained, is without authority.

Reported below, 1 N. Y. State Rep., 97.

Appeal from an order of the general term of the court of common pleas for the city and county of New York, reversing an order of the general term of the city court of New York affirming an order made at special term of said city court adjudging the defendant, George Herman, guilty of misconduct and con'tempt of court and fining him in the sum of $1,132.32. The alleged misconduct and contempt consisted in verifying and interposing an answer which the court found to be false and untrue ; and it was further found that the defendant knew it to be false at the time of the making of the verification.

William J. Fanning, for app’lts; M. L. Townsend, for resp’t.

The city court -was not called upon to, nor did it pass upon the question as to whether or not the verifying and interposition of a false answer, with knowledge of its falsity on the part of an affiant, constitutes a criminal contempt punishable as provided in § 9 of the Code of Civil Procedure. It aid determine that such conduct amounts to a civil contempt, within the intent and meaning of § 14 of the Code, and punishable as provided in §§ 2281 and 2284.

If it be assumed that the acts complained of may, within the purview of § 14, be held to constitute a contempt, punishable civilly, where the right or remedy of a party has been defeated or impeded, a question we do not pass upon, still we think the order appealed from must be affirmed.

Section 2281 provides when and how a party adjudged to have been guilty of a contempt of court within the provisions of § 14 shall be punished. While § 2284 governs the extent of the fine that may be imposed. It provides that “ if an actual loss or injury has been produced to a party to an action or a special proceeding by reason of the misconduct proved against the offender

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■* * * a fine sufficient to indemnify the aggrieved party must be imposed * * * 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 complainant’s costs and expenses, and $250 in addition thereto * * *. ”

The fine imposed by the court in this proceeding was $1,132.32, that being the amount of plaintiffs’ judgment, and seventy-five dollars allowed for costs in subsequent proceedings.

It will be observed that the fine imposed was far in excess of the sum which the court had power to inflict in the absence of proof that the plaintiff had sustained damage in such amount because of the act of defendant adjudged to be a contempt of court. It is well settled that under this section of the Code the amount of the fine to be imposed for the purpose of indemnifying the person aggrieved must be based upon proof of the damage actually sustained. Sudlow v. Knox, 7 Abb., N. S., 411; Dejonge v. Brenneman, 23 Hun, 332 ; Clark v. Bininger, 75 N. Y., 344 ; King v. Flynn, 37 Hun, 329 .

True the court did adjudge that by reason of the misconduct of the defendant the plaintiffs were prevented from collecting them judgment, and, therefore, there resulted an actual loss to the plaintiffs in a sum equal to the amount due on the judgment. That finding, however, was wholly without evidence to support it. It is undisputed that the only property belonging to the defendant after the commencement of the action was by him conveyed to a third person on the 1st day of March, 1885 ; that the plaintiff could not have obtained judgment until the 4th day of March ensuing had the defendant omitted to serve an answer; and that the answer was in fact served on the 3rd day of March. So that, while the service of the answer necessarily postponed for a few days the obtaining of a judgment on the part of the plaintiffs, the defendant was not enabled by such act to dispose of his property, because at the time of its service he had no property to dispose of, a conveyance thereof having been made before the doing of the act for which he was charged in contempt. True, the deed was not recorded until March 4th, the day upon which plaintiffs might have obtained judgment had defendant made default, but that fact did not in any wise affect the situation, because, as between the plaintiffs and the grantee, the judgment would not have been a lien upon the real estate conveyed upon the 1st day of March, even if the deed had been recorded subsequent to its entry. Trenton Banking Co. v. Duncan, 86 N. Y., 221 .

It may well be, as intimated in the opinion of the special term, that it was the intention of Herman in making the conveyance to avoid thé' payment of the debt owing to plaintiffs, but the fact remains that such act was performed before the service of the answer, and it was not in any wise aided or strengthened by the delay occasioned by the interposition of the false pleading. It follows then, that the proof before the court utterly failed to establish that the plaintiffs sustained damage in an amount equal to the sum due upon their judgment, or in any sum whatever, by

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the alleged misconduct of the defendant. The imposition of a fine, therefore, in excess of the amount which the court was authorized to impose in the absence of proof of the extent of the loss sustained, to wit: complainant’s costs and expenses, and $260-in addition thereto, was without authority, and demanded the order of reversal made by the general term.

The order appealed from should be affirmed, with costs.

All concur.