East River National Bank v. De Lacy

36 Misc. 868, 74 N.Y.S. 925

Opinion

Schuchman, J.

Section 2284 of the Code of Civil Procedure provides that “ If an actual loss or injury has been produced to a party to an action or special proceeding, by reason of the misconduct proved against the offender, * * * a fine sufficient to indemnify the aggrieved party must be imposed. * * * Where it is not shown that an actual loss or injury has been produced, a fine must be imposed not exceeding the amount of complainant’s costs and expenses and $250 in addition thereto.” There is no proof in this matter of the damage actually sustained for the purpose of indemnifying the aggrieved party. The damage must be proved as in an action. It, therefore, appears that the fine imposed was far in excess of the sum which the court had power to inflict in the absence of proof of the extent of the loss sustained. Moffat v. Herman, 116 N. Y. 131; Burnham v. Denike, 53 App. Div. 407. Therefore, the fine could not have exceeded the sum of $250 and costs and 'expenses.

. Order modified by reducing fine to $250, and $30 costs, and as so modified, affirmed, without costs.

Fitzsimons, Ch. J., and Delehanty, J., concur.

Order modified, and as so modified, affirmed, without costs.