Fromme v. . Gray

43 N.E. 215, 148 N.Y. 695, 1896 N.Y. LEXIS 602

• Court: New York Court of Appeals
• Decided: March 10, 1896
• Status: Published

Opinion

Per Curiam.

We are not impressed with the force of the argument which is made in support of the order of the City Court, and we deem it only necessary to state briefly our reasons for affirming the action of the Common Pleas Court. The proposition involved is somewhat startling and can have no support in the provisions of the Code of Civil Procedure; unless found in the very strained construction "which has been placed upon subdivision 2 of section 14, which treats of civil contempts. The subdivision mentions as one of the cases, “ a party to the action or special proceeding * * * for any deceit or abuse of a mandate or proceeding of the court.” Hnless it is found in that provision, authority does not exist elsewhere in the Code. An answer, however, is not “ a proceeding of the court ” and, of course, it is not a “ mandate.” A pleading may be a proceeding of the party in court; but it is in no sense a proceeding of the court, to which alone the section has reference. Hor does the use of the word “ deceit” affect the question; inasmuch as it must be a deceit of the court, or practiced upon the court, which is punishable and it is absurd to say- that a false answer, in any sense, deceives the court. The court is not misled by it; nor regards it otherwise than as a defense, which raises an issue to be tried by it. If we assume that the defendant perjured himself in interposing the verified answer in question, then his punishment must be left to the criminal branch of the court; where, after proper proceedings, he may be tried by a jury for the offense as charged in an indictment. The Special Term decisions, to which we have been referred, we deem to have been made without a proper or careful consideration of the matter.

The opinion delivered at the General Term satisfactorily discusses the question, and we think its order was correct and that it should be affirmed, with costs.

All concur.

Order affirmed.