De Witt v. Gunn

34 N.Y.S. 879

Opinion

McADAM, J.

The application is to punish the defendant for contempt in not appearing and submitting to an examination pursuant to an adjournment had in supplementary proceedings. The proposed order fines the defendant the entire amount of the judgment ($512.50), and directs his imprisonment till the payment of the fine. Section 2285 of the Code provides that, “where the misconduct proved consists of an omission to perform an act or duty which it is yet in the power of the defendant to perform, he shall be imprisoned only until he has performed it,” and the fine is limited to the actual injury. Fenlon v. Dempsey, 7 N. Y. Supp. 435; Id., 50 Hun, 131, 2 N. Y. Supp. 763. Counsel will therefore amend the order by fining the defendant $30, the costs of the supplementary proceedings, and directing his imprisonment until he pays said fine and submits to the required -examination.