Burton v. Myers

New York Supreme Court

Burton v. Myers

172 Misc. 263, 14 N.Y.S.2d 562, 1939 N.Y. Misc. LEXIS 2266

CourtNew York Supreme Court

DecidedSeptember 6, 1939

StatusPublished

Cited by1 cases

This text of 172 Misc. 263 (Burton v. Myers) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Burton v. Myers, 172 Misc. 263, 14 N.Y.S.2d 562, 1939 N.Y. Misc. LEXIS 2266 (N.Y. Super. Ct. 1939).

Pincite

Opinion

Benvenga, J.

This is a motion by the plaintiff for an order to assess treble damages against the defendants pursuant to section 924 of the Civil Practice Act. This section, so far as material, provides that a person who falsely or fraudulently makes a claim of ownership to property which has been attached “ may be punished as and for contempt of court and shall be liable in treble damages to the party injured thereby.”

The question presented is whether the proper remedy is by motion to assess damages or by action for damages. No precedent has been found by counsel; nor are we aware of any. It seems that the statute Contemplates that, in the case of a false and fraudulent claim by a third party, he is punishable as and for a contempt of court and is liable, in addition to punishment for cohtempt, to an action for damages. This is made clear by analogous provisions of the Civil Practice Act. (See Civ. Prac. Act, §§ 48, 405, 435, 1516; Alloway v. Hickok, 215 App. Div. 86; affd., 243 N. Y. 615.) Thus, section 405, which prescribes the penalty for disobedience to a [264]*264subpoena, provides that the offender is liable, “ in addition to punishment for contempt,” for damages sustained by the party aggrieved in consequence of the failure, and fifty dollars in addition thereto. The statute then provides that the sums in question may be recovered “ in one action or in separate actions.”

The motion is denied.

Free access — add to your briefcase to read the full text and ask questions with AI

Benvenga, J.

This is a motion by the plaintiff for an order to assess treble damages against the defendants pursuant to section 924 of the Civil Practice Act. This section, so far as material, provides that a person who falsely or fraudulently makes a claim of ownership to property which has been attached “ may be punished as and for contempt of court and shall be liable in treble damages to the party injured thereby.”

The question presented is whether the proper remedy is by motion to assess damages or by action for damages. No precedent has been found by counsel; nor are we aware of any. It seems that the statute Contemplates that, in the case of a false and fraudulent claim by a third party, he is punishable as and for a contempt of court and is liable, in addition to punishment for cohtempt, to an action for damages. This is made clear by analogous provisions of the Civil Practice Act. (See Civ. Prac. Act, §§ 48, 405, 435, 1516; Alloway v. Hickok, 215 App. Div. 86; affd., 243 N. Y. 615.) Thus, section 405, which prescribes the penalty for disobedience to a [264]*264subpoena, provides that the offender is liable, “ in addition to punishment for contempt,” for damages sustained by the party aggrieved in consequence of the failure, and fifty dollars in addition thereto. The statute then provides that the sums in question may be recovered “ in one action or in separate actions.”

The motion is denied.

Cite This Page — Counsel Stack

Bluebook (online)

172 Misc. 263, 14 N.Y.S.2d 562, 1939 N.Y. Misc. LEXIS 2266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burton-v-myers-nysupct-1939.

Opinion

Related

Cite This Page — Counsel Stack