McAveney v. Brush — 72 N.Y. St. Rep. 151

Majority

p. 151

McAveney v. Brush et al.

(Supreme Court, Appellate Division, First Department,

Filed January 24, 1896.)

Headnote

1. Contempt—Damages.

The general term, on reversing an order refusing to punish defendant for contempt in giving a bond with fictitious sureties to discharge a mechanic’s lien, should not impose as a fine the amount of the bond, but should remit the matter to the special term for further procedure,

2. Same.

In such case, the fine must he limited to an amount sufficient to Indemnify the aggrieved party for the actual loss or injury sustained, so far as it is in excess of $250 and costs.

Re-argument,

George S. Daniels, for app’lt; Hector M. Hitchings, for resp’ts.

—For the reasons stated in the opinion of Mr. Justice Daly upon the decision of the appeal taken from the above-mentioned order to the general term of the court of common pleas, we are of the opinion that there was power in the court to punish for the contempt charged. We, think, however, that the court should have remitted the matter to the special term for further procedure, instead of attempting to fix the penalty to be imposed because of such contempt. Indeed, the may not have had the power to impose the fine sought to be imposed by the general term of the court of common pleas upon their decision of the previous appeal, as the fine must be limited to an amount sufficient to indemnify the aggrieved party for the actual loss or injury sustained (section 2284 of the Code), só far as it was in excess of $250 and costs. The court, under circumstances similar to

p. 152

those in the case at bar, may possibly have the.power, as a condition of waiving the imprisonment which it has the right to impose, to exact the performance of conditions which it cannot impose as a fine.

The order appealed from should therefore be reversed, with $10 cost and disbursements, and the matter remitted to the special term for further action.

All concur.