Berkon v. Mahoney

268 A.D. 825, 49 N.Y.S.2d 551, 1944 N.Y. App. Div. LEXIS 3642

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 3, 1944
• Status: Published

Opinion

Proceeding pursuant to article 78 of the Civil Practice Act, to review an order of a magistrate’s court of the city of New York adjudging respondent guilty of a criminal contempt of court and fining him the sum of $100. Order vacating and setting aside the order of commitment reversed on the law, without costs, and the proceeding dismissed, without costs. The order of commitment is not defective. It complies with the statutory requirements and sets forth facts sufficient to warrant the adjudication of contempt. Neither the statutes (N. Y. City Crim. Cts. Act [L. 1910, ch. 659, as amd.], § 102-b; Judiciary Law, art. 19) nor practice (cf. Matter of Waldman v. Churchill, 262 N. Y. 247) requires a recitation in the order of commitment of the statutes upon which the commitment is based. Nor is it necessary that the word “ wilful ” be set forth in the mandate. This is not a contempt based upon “ wilful disobedience to its lawful mandate,” but rather upon subdivision 1 of section 102-b of the New York City Criminal Courts Act, which is contained in substance in the order. The intent to defy the dignity and the authority of the court (People ex rel. Bernstein v. La Fetra, 171 App. Div. 269, 275, affd. 219 N. Y. 691; Matter of Rotwein [Goodman], 291 N. Y. 116,122) sufficiently appears from the facts set forth in the order of contempt. It was proper for the magistrate to interpolate his version of the occurrences in conjunction with the stenographer’s minutes. (People ex rel. Bernstein v. La Fetra, supra.) Irrespective of such interpolations, the stenographer’s minutes are sufficient to show that the conduct of the petitioner constituted contempt. Close, P. J., Hagarty, Johnston, Lewis and Aldrich, JJ., concur. [180 Misc. 659.]