People ex rel. O'Connor v. Sickles — 36 N.Y. St. Rep. 548

Majority

p. 548

The People ex rel. Michael J. O’Connor, App’lt, v. Daniel E. Sickles, Sheriff, Resp’t.

(Supreme Court, General Term, First Department,

Filed January 16, 1891.)

Headnote

Contempt—Commitment.

A commitment for contempt in supplementary proceedings, after adjudging relator guilty of contempt and that such contempt impaired, etc., the rights or remedies of the plaintiff, imposed a fine and directed his

p. 549

commitment until it was paid; it also provided that if relator should appear on a day certain for examination, pay the plaintiff a certain sum as a fine for his misconduct and give a stipulation not to bring any action for damages because of such proceedings, he should be purged from contempt and discharged. Held, that even if the court had no power to insert the alternative proceedings in the order and commitment, it did the relator no harm, as he could relieve himself from imprisonment by complying with that portion of the order which the court was empowered to make.

Appeal from order dismissing writs of habeas corpus and certiorari.

David M. Newburger, for app’lt; J. M Weld, for resp’t

The relator was adjudged guilty of contempt by the city court of Mew York in proceedings supplementary to execution. An order for commitment was duly made and entered on the 11th of July, 1890, and a warrant was subsequently issued and the relator arrested thereunder. Writs of habeas corpus and certiorari were obtained and it was claimed that the arrest under the order of commitment was unlawful and unauthorized because such order after having adjudged the defendant guilty of contempt and that such contempt had impaired, impeded and prejudiced the rights or remedies of the plaintiff, and after having imposed a fine, and after having provided for the payment of the costs and the sheriff’s fees, and after having ordered that the defendant stand committed to the common jail, there to remain charged upon said contempt until the said fine, together with the costs, expenses and sheriff’s fees therein be fully paid, unless he should be sooner discharged by the court, provided, that should the defendant appear on a day certain for the purpose of being examined, and pay to the plaintiff a certain sum as a fine for his misconduct, and should he also serve upon the plaintiff’s attorney a stipulation binding himself not to bring any action for damages against the plaintiff or his attorney because of any proceedings had or ordered therein, that “ thereupon said defendant should be deemed purged of said contempt, and discharged from the custody of the sheriff,” and his bond cancelled. The writs were dismissed, and from the order thereupon entered this appeal is taken.

The commitment complied with all the requirements in respect to such proceedings. The appellant was charged and punished for his failure to appear for examination, and the warrant specified the act which he was required to perform, and the sum to be paid to relieve himself from the contempt.

It is urged that neither the order nor the commitment give an-opportunity to the relator to be relieved of his contempt by the performance of the act for failure to do which he was committed; but that this liberty was restricted by requiring the stipulation not to sue.

It is clear that the court is not bound to allow a party who has willfully disobeyed its order for his examination to purge himself by submitting to examination. The court has a right to adjudicate as to what extent the contumacy of the judgment debtor has impaired, impeded and prejudiced the rights or remedies of the plaintiff and to impose a fine therefor and to direct that the judg

p. 550

ment debtor stand committed until he pays the same. This the order and commitment in question did; and if the court should allow in the commitment the judgment debtor to purge his contempt by doing something else than this, if he complains, he need not take advantage of the privilege, such part of the order being mere surplusage. If the court had no power to insert it there, the commitment was complete without it. The judgment debtor could relieve himself from imprisonment by doing those things which the court required him to do, and which the court was empowered to require him to. do; and if he did not please to do that he need not accept the alternative; he could stay in jail.

We think, therefore, even if the court had no power to insert the alternativo proceeding in the order and commitment, it did the judgment debtor no harm, because he could relieve himself from imprisonment by complying with that portion of the order which the court was empowered to make.

The order should be affirmed, with ten dollars cost-?- and disbursements.

Brady and Daniels, JJ., concur.