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Wolf v. Buttner

57 N.Y. St. Rep. 861 Court N.Y.C.P. Decision date 1893-12-04 English

Delivered by Bischoff, J.

Contents

Majority

p. 861
Elias Wolf, Resp’t, v. Simon Buttner, App’lt.
(New York Common Pleas, General Term,
Filed December 4, 1893.)

Headnote

1. Contempt—Fine.
To authorize the imposition oí a fine, and infliction of imprisonment in default of its payment, in proceedings to punish as for a civil contempt of court, it must be ascertained and determined that the misconduct complained of defeated, impaired, impeded or prejudiced the right or remedy of a party to an action or special proceeding.
3. Appeal—Default.
A final order, if made on default, is not appealable.
3. Same.
An appeal will lie from an order, affirming an order denying a motion to vacate a prior order taken by default.
Appeal from an order of the general term of the city court of New York which affirmed an order, made on default, adjudging the appellant judgment-debtor in contempt for alleged disobedience of an order in proceedings supplementary to execution ; and which further affirmed an order denying the appellant judgment-debtor’s motion to vacate the order adjudging, him in contempt.
William N. Loew, for appl’t; Maurice B. Blumenthal, for resp’t.

To authorize the imposition of a fine and infliction of imprisonment in default of its payment in proceedings to punish as for a civil contempt of court, it must be ascertained and determined that the misconduct complained of defeated, impaired, impeded, or prejudiced the right of remedy of a party to an action or special proceeding. Code of Civil Procedure, § 14, Cleary v. Christie, 41 Hun, 566 ; 4 St. Rep. 117 ; Fischer v. Raab, 81 N. Y. 235 ; Sandford v. Sandford, 2 St. Rep. 133 . This the order of March 6,1893, which puiqiorts to adjudge the judgment-debtor and appellant guilty of misconduct constituting a contempt, omitted, and because of that omission it was fatally defective. True, the order specifically determined that the judgment-debtor had disposed of his property and failed to appear for examination, pursuant to an order in proceedings supplementary to execution, but it does not appear that the property dispose of was applicable toward the payment of the judgment upon which the proceedings were founded, or that the examination of the judgment-debtor, had before the institution of the contempt proceedings, was inadequate for the maintenance and preservation of the judgment-creditor's right or remedy. The order was a final one, since it imposed the payment of a fine and directed the judgment-debtor’s imprisonment in de

p. 862
fault of the payment of the fine. Code Civ. Pro. §§ 2281, 2283 ; Clark v. Goodridge, 44 How. 234 . It was not appealable, however, because made upon the judgment-debtor’s default in appearance after service upon him of due notice of motion. Code Civ. Pro. § 1294; Keller v. Feldman, 2 Misc. R. 179; 49 St. Rep. 718 ; McMahon et al. v. Rauhr et al., 47 N. Y. 67 . It was error therefore on the part of the general term of the court below to entertain and determine an appeal therefrom.

The order of March 27, 1893, which denied the judgment-debt- or’s motion to vacate the order of March 6, 1893, let the last mentioned order unconditionally in full force and effect, and was therefore equally a final order. The same is to be said of the order of the general term of the court below, in so far as it affirmed both orders of the special term. The fine imposed and the imprisonment directed by the order of March 6, 1893, being unauthorized from the facts determined, the order denying the judgment-debtor’s motion to vacate it, and the order affirming the last mentioned order, affected a substantial right. Hence, the judgment-debtor’s right of appeal from the order of affirmance to this court is indisputable (Code Civ. Pro. § 3191, subd. 3).

The order dated March 6, 1893, and made at special term, should be vacated and set aside, and the appeal therefrom be dismissed ; and the order of affirmance .made at general term of the court below should be reversed. Ho costs of this appeal are allowed to either party.

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