Lawrence v. Harrington — 43 N.Y. St. Rep. 413

Majority

p. 413

William F. Lawrence et al., App’lts, v. Arvin W. Harrington et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed February 8, 1892.)

Headnote

Contempt—False justification by sureties.

Sureties upon an undertaking on appeal who swear falsely upon justification with, intent to deceive the court as to their responsibility, and thereby prevent the collection of the judgment, are guilty of contempt of court under § 14 of the Code. It is not essential that they should be convicted of perjury before they can be punished.

Appeal from order denying motion to punish for contempt Joseph H. Harrington and Arvin W. Harrington, Jr.

Plaintiffs recovered judgment against defendant Arvin Harrington from which an appeal was taken to the general term and the court of appeals, undertakings being given signed by the defend-

p. 414

ants against whom this proceeding is taken, who each swore that he was worth $5,000. The judgment was modified, but the judgment debtor had failed in the meantime, and .judgment was recovered upon the undertakings, and the sureties examined upon supplementary proceedings, when it was discovered that they had sworn falsely as to their property.

James M. Hunt, for app’lts; O. B. Wellington, for resp’ts.

The papers clearly established that Joseph H. and Arviu W. Harrington, Jr., sureties, swore falsely upon a justification as sureties before a notary with an intent to deceive the court as to their responsibility. They well knew ‘that the purpose was to stay an execution against their father, and that result was accomplished by such false swearing.

The facts are too clearly proved to require discussion. It is also clear that' the rights of the plaintiffs have been seriously preju i diced by such deceit and false swearing.

The plaintiffs were prevented from collecting their judgment, which constituted under § 14 of Code of Civil Procedure a civil contempt. It was an interference with the due and orderly progress of the action to its ultimate close, and impeded the right of the plaintiffs to collect the judgment. King v. Barnes, 51 Hun, 550 ; 22 St. Rep., 47 ; affirmed in 113 N. Y., 476 ; 23 St. Rep., 263 .

It was not essential that the sureties could be convicted of perjury, as their conduct was a fraud upon the plaintiffs and the court .and prevented the course of justice.

The distinction between a civil and criminal contempt has been pointed out too often to require any comment.

By falsely making the' statutory oath they intended to and did defeat the remedy of the plaintiffs, and this prejudiced and injured their rights. Egan v. Lynch, 49 N. Y. Supr. Ct., 454 ; Foley v. Stone, 30 St. Rep., 834 .

The presumption arising from the plaintiffs’ papers is that the plaintiffs were damaged to the amount of the judgment which they were prevented from collecting.

Order reversed, with costs and disbursements, and rehearing ordered at special term.

Barnard, P. J., concurs; Dykman, J., not sitting.