Hommel v. Buttling

46 A.D. 206

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1899
• Status: Published

Opinions

Cullen, J.:

We differ from the view of the learned' presiding justice that the commitment is illegal on its face. It did not direct the imprisonment of the debtor for any period whatever after the. payment of his .line. Section 2285, Code of Civil Procedure, has no application to such a case. It provides that where the misconduct is an ¿mission to perform an act still in the power of the offender to perform, he shall be imprisoned only until he has performed it and paid the fine, and that in other cases he may be imprisoned not exceeding six months. The effect of this section is to limit the power of the court to inflict imprisonment as punishment for contempt, in one case to only such time as the defendant may perform an act still within his power, in the other to a term not exceeding six months. But the section does not require that the court must, of necessity, inflict imprisonment in either class of cases. It may, under section 2284, confine the punishment to the payment of a fine simply. This is what has been done in the present case. The court might, in addition to the fine imposed, have directed the imprisonment of the offender to continue until he should submit to an examination, but it was not required to do so. People ex rel. Post v. Grant (50 Hun, 243) is not an authority to the contrary. In that case the relator was discharged, not because there was no direction that he be imprisoned until he performed any act or duty, but because, having been directed to be imprisoned until he complied with certain orders of the court, the commitment failed to specify the particular acts which he was to do, as required by section 2285.

The judgment appealed from should be affirmed, with costs.

All concurred, except Goodrich, P. J., who read for reversal.