In re De Long

Appellate Division of the Supreme Court of New York

In re De Long

41 N.Y.S. 201, 25 N.Y. Civ. Proc. R. 363

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 15, 1896

StatusPublished

Cited by2 cases

This text of 41 N.Y.S. 201 (In re De Long) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re De Long, 41 N.Y.S. 201, 25 N.Y. Civ. Proc. R. 363 (N.Y. Ct. App. 1896).

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Opinion

LAWRENCE, J.

This is an application made on behalf of Oscar A. De Long for a stay of proceedings pending an appeal from an order made at special term, adjudging him guilty of contempt in having violated the injunction contained in the decree in the action of Frank E. De Long against the De Long Hook & Eye Company. It is objected that the order is not appealable, because it is not a final order. It was, however, held in People v. Dwyer, 90 N. Y. 402, that a proceeding to punigh for an alleged criminal contempt, originating in the violation of an order granted in a civil action, is a civil special proceeding, within the meaning of the Code of Civil Procedure (sections 1356, 1357), and that an order therein finding the party proceeded against guilty, and imposing a punishment, is reviewable upon appeal. It would seem, from that decision, that the contention that the order in question is not appealable cannot be sustained. The order appealed from imposed a fine, and directed a reference to ascertain the loss and damage which the plaintiffs have sustained by reason of the misconduct of the appellant, together with the costs and expenses of the proceeding to punish him for contempt, and that the referee should report the proof taken by him to the court, together with his opinion thereon, and that, on the coming in and confirmation of said report, the amount of the plaintiffs’ damage, and their costs and expenses, should be fixed and determined by the court. The order further provided that the said De Long should be fined the said sum of money so fixed and determined, as and for damages and costs aforesaid for his misconduct, and that he pay the same to the plaintiffs, and stand committed to the jail for the city and county of New York, until the said fine shall be paid. I think the defendant should be allowed a reasonable stay in which to prosecute his appeal, and shall therefore direct, if he will stipulate positively to argue the appeal at the May term of the appellate division, that such a stay be granted. Settle order on one day’s notice.

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LAWRENCE, J.

This is an application made on behalf of Oscar A. De Long for a stay of proceedings pending an appeal from an order made at special term, adjudging him guilty of contempt in having violated the injunction contained in the decree in the action of Frank E. De Long against the De Long Hook & Eye Company. It is objected that the order is not appealable, because it is not a final order. It was, however, held in People v. Dwyer, 90 N. Y. 402, that a proceeding to punigh for an alleged criminal contempt, originating in the violation of an order granted in a civil action, is a civil special proceeding, within the meaning of the Code of Civil Procedure (sections 1356, 1357), and that an order therein finding the party proceeded against guilty, and imposing a punishment, is reviewable upon appeal. It would seem, from that decision, that the contention that the order in question is not appealable cannot be sustained. The order appealed from imposed a fine, and directed a reference to ascertain the loss and damage which the plaintiffs have sustained by reason of the misconduct of the appellant, together with the costs and expenses of the proceeding to punish him for contempt, and that the referee should report the proof taken by him to the court, together with his opinion thereon, and that, on the coming in and confirmation of said report, the amount of the plaintiffs’ damage, and their costs and expenses, should be fixed and determined by the court. The order further provided that the said De Long should be fined the said sum of money so fixed and determined, as and for damages and costs aforesaid for his misconduct, and that he pay the same to the plaintiffs, and stand committed to the jail for the city and county of New York, until the said fine shall be paid. I think the defendant should be allowed a reasonable stay in which to prosecute his appeal, and shall therefore direct, if he will stipulate positively to argue the appeal at the May term of the appellate division, that such a stay be granted. Settle order on one day’s notice.

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Bluebook (online)

41 N.Y.S. 201, 25 N.Y. Civ. Proc. R. 363, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-de-long-nyappdiv-1896.

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