In re Wilkes — 62 N.Y. St. Rep. 224

Majority

p. 224

In the Matter of George S. Wilkes et al.

(New York Common Pleas, Special Term,

Filed May 17, 1894.)

Headnote

Contempt—Bond—Insolvent surety.

An offer of a bond -with, an insolvent surety, for the purpose of discharging a mechanic’s lien is not a contempt of court, where the statutory notice of justification has not been given:

Motion to punish contempt in offering bond with an insolvent surety, to discharge a mechanic’s lien.

Robé. J. Mahon, for motion ; Thos. Allison, for Beekman ; Solomon Kohn, for Donnington ; Jas. Kearney, for Wilkes.

It appeared that a mechanic’s lien was filed by Mahoney and Wood upon premises owned by Donnington, and the latter, desiring to have- the lien discharged, caused to be offered to the lienors’ attorney a bond executed by himself and Wilkes as surety in $1,500, and asked the attorney to consent that the court fix the amount of the security to be given at that sum. The attorney of the lienor stated that Wilkes was insolvent, and that it would be futile to'proceed further thereon. The suggestion seems to have been adopted, and the bond withdrawn. Application is now made to punish the parties concerned for contempt in offering the insolvent as surety. It is a conclusive answer to the application that no right of a party to an action' or special proceeding has been affected by the offer of the bond. The power of the court to punish for

p. 225

contempt civilly is limited to the cases iri which the conduct complained of may defeat, impair, impede or prejudice the right or remedy of a party to a civil action or proceeding (Code, § 14), or is calculated to do so (Code, § 2281). There was no action or proceeding pending. The lienors not having been noticed to appear in court for the justification of the sureties, as required by the mechanic’s lien act. Laws 1885, chap. 342, § 24, subd. 6. The proposal for consent to the fixing of the amount of the bond was no part of any judicial proceeding, for until the statutory notice had been given no proceeding was instituted. The lienors, therefore, were not parties to any action or proceeding, and the case is not within the provisions of the Code.

Motion denied, without costs.