Hammer v. Leon

85 N.Y.S. 1132

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 7, 1904
• Status: Published

Opinion

PER CURIAM.

The judgment debtor appeals from an order of the City Court adjudging him guilty of a contempt of court in having disposed of $43 in violation of a restraining order in proceedings supplementary to execution, and in falsely testifying upon the examination in said proceedings as to the names and addresses of certain persons to whom he admitted he was then indebted. Upon his examination the judgment debtor testified he had collected $46 in cash since the day when he was served with the order in supplementary proceedings, which from the imperfect record before us would appear to have been at most three days before the day of examination. In his answering affidavit upon the motion to punish him for contempt, he does not pretend to assert that the money so collected related to money earned after the service of the order upon him; but, on the contrary, he attempts' to mitigate his offense by asseverating, that his disobedience was not willful, nor malicious, in that the money so collected was used to pay certain specified obligations, principally for household needs. It cannot seriously be urged that there is any reasonable doubt that the moneys so collected were for debts owing at the time of the service of the order. But with respect to that portion of the order which adjudges the appellant guilty of contempt for falsely testifying to the names and addresses of certain of his debtors, it is sufficient to say that no facts are alleged in the affidavit of the plaintiff’s attorney, upon which the finding of the alleged contempt is based, from which the court could find that perjury was committed. Conclusions of the affiant are assumed to be equivalent to allegations of facts. The order should be modified by limiting the contempt to the disobedience of the original restraining order, and reducing the fine to $43, the amount which would measure the extent to which the rights of the judgment creditor were affected, and $30 costs of the proceedings. As thus modified, the order is affirmed, without costs.