Bernheimer v. Kelleher

31 Misc. 464, 64 N.Y.S. 409

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 15, 1900
• Status: Published

Opinion

Per Curiam.

This is an appeal by the defendant, a judgment debtor, from an order of the General Term of the City Court, affirming an order of the Special Term, whereby he was adjudged guilty of contempt, and fined the amount of the judgment against him and $30 costs, amounting in all to $968.26.

The alleged contempt consisted in this: That, upon his examination in proceedings supplementary to execution, the defendant swore that he had never transferred to his brother any property of any kind, or an interest in any saloon, and had never executed to said brother any written instrument of any kind, or had any business dealings with him or transferred any property of any kind to him, whereas, in fact, he had some two weeks earlier transferred to his brother a saloon, by a bill of sale executed by him, and filed in the office of the register of the county of Hew York. The defendant attempted to show that, while his testimony was apparently false, he had not been guilty of willful false swearing. The justice at Special Term found against him on this point, and for the purposes of this appeal, it may be assumed that he willfully and intentionally perjured himself. The question then remains whether false swearing by a judgment debtor, upon his examination in supplementary proceedings, touching the disposition of his property is a contempt for which he can be punished by fine and imprisonment. - If it is, it must be found to be embraced within some of the definitions furnished by the Code of Civil Procedure. It clearly is not a criminal contempt as defined by section 8. It is not defined in any of the subdivisions of section 14, relating to civil contempts, unless it be under subdivision 2 or 4. Subdivision 2 authorizes punishment of “A party to the action or special proceeding for putting in fictitious bail, or fictitious surety, or for any deceit or abuse of a mandate or proceeding of the court.” Clearly the defendant’s offense does not fall within this section. He did not put in any surety or bail, fictitious or otherwise, and he did not abuse any mandate or proceeding of the court. Fromme v. Gray, 148 N. Y. 695. Nor was he guilty of deceit within the meaning of the subdivision, for that deceit manifestly means deceit practiced upon the court in procuring its mandate or process. Fromme v. Gray, 14 Misc. Rep. 592. Nor was the defendant guilty of any unlawful interference with any proceeding in court, which, by subdivision 4 of section 14, may be punished as a contempt. The respondents cite us several authorities which are not in point because they refer to cases of perjurious justification by sureties, which are expressly provided against in subdivision 2 of section 14. A further objection to the order appealed from, is that it does not appear that any right or remedy of the plaintiffs were defeated, impaired, impeded or prejudiced by the defendant’s perjury. None of the acts specified in section 14 of the Code can be punished as a contempt, unless it appears that thereby a right or remedy of a party may be defeated, impaired, impeded or prejudiced. It is true that the justice at Special Term found that the defendant’s misconduct had this effect, but this finding is not binding upon this court unless there is to be found, in the papers, some evidence to support it. There is no such evidence. The only effect of the defendant’s evidence as to a transfer to his brother, if he had answered truly, would have been to have laid the foundation for an action against the brother. The false testimony was given on August twenty-second. The transfer to the brother had been made and filed on August eleventh, and the fact of its making and filing was known to the plaintiffs at least as early as August twenty-third. The defendant’s false swearing interposed no obstacle to any proceeding against the brother, and therefore cannot be said to have defeated, impaired, impeded or prejudiced any remedy the plaintiffs may have had against the assigned property. Proceedings to punish a party as for a contempt are not to be lightly entertained, since they involve the liberty of a citizen. In a proper case the court should not be slow to assert and enforce its authority, but its summary process in this regard can be invoked only in the cases prescribed by statute. ¡No such case is presented here.

It follows that the order of the Special Term and General' Term of the City Court must be reversed, with costs.

Present: Truax, P. T., Soott and Ditgeo, JJ.

Order reversed with costs.