Wolfe v. Knight — 72 N.Y. St. Rep. 790

Majority

p. 790

William L. Wolfe et al., Resp’ts, v. George N. Knight, App’lt.

(New York City Court, General Term,

Filed January 28, 1896.)

Headnote

1. Contempt—Order—Recitals.

Where an order, which purports to adjudge a party guilty of misconduct constituting a civil contempt, omits to declare that it has been ascertained and determined that the misconduct complained of defeated, impaired. impeded or prejudiced the rights or remedies of the party to the proceeding, it is fatally defective and must be Reversed.

2. Same—Order op dismissal.

Where there is any irregularity in the mode of dismissing a proceeding, it can be taken advantage of only by an application to set it aside and revive the proceedings, and not by moving to punish the party as for contempt in disobeying the order made 'therein.

Appeal from an order, adjudging defendant guilty of contempt.

Nathan Lewis, for app’lt ; Henry Merzbach, for resp’ts.

—The order of September 17, 1.895, which purports to adjudge the judgment debtor guilty of misconduct constituting a civil contempt, omitted to declare that it had been ascertained and detetermined that the misconduct complained of defeated, impaired, impeded, or prejudiced the rights or remedies of the party to the proceeding; and, because of this alone, it was fatally defective (Wolf v. Buttner, 57 St. Rep. 861 ), and must be reversed. It is not enough that property is found in the hands-of the judgment debtor.

Besides, the proceedings appear to have been dismissed by an order of Justices Conlan, and in proper form. If there was any irregularity in the mode of dismissal, plaintiff could only take advantage of it by application to set it aside, and revive the proceedings. - Without such, the court had no jurisdiction, and could not punish the defendant.

Order'is therefore reversed, vacated, and set aside, with costs..