In re the Examination of Jones

126 A.D. 112, 110 N.Y.S. 565, 1908 N.Y. App. Div. LEXIS 3300

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 6, 1908
• Status: Published

Opinion

McLennan, P. J.:

From the facts which have been fully set forth in the preceding statement, we think it clear that by the order appealed from it was sought to punish the defendant as for a civil contempt. A criminal contempt is defined in section 8 of the Code of Civil Procedure. Its provisions, so far as applicable to this case, are: “ 3. Wilful disobedience to its (the court’s) lawful mandate. 4. Resistance wilfully offered to its lawful mandate.” In the order appealed from there is no adjudication that the conduct of the defendant in failing to appear before the referee and be examined on the 2d day of January, 1908, as to his property, rather than two days later, when he actually did appear and offer to submit to such examination, was willful and intended. Rothing appears in the record which would have supported such a determination.

What constitutes a criminal contempt and the distinction between it and a civil contempt is clearly pointed out in the case of People ex rel. Munsell v. Court of Oyer & Terminer (101 N. Y. 245), in which Judge Finch, writing the opinion for the court (atp. 248), said : “ The second class of contempts consists of those whose cause and result are a violation of the rights of the public as represented by their constituted legal tribunals, and a punishment for the wrong in the interest of public justice, and not in the interest of an individual litigant. In these cases if a fine is imposed its maximum is limited by a fixed general law, and not at all by the needs of individuals; and its proceeds when collected go into the public treasury and not -into the purse of an individual suitor. The fine is punishment rather than indemnity, and if imprisonment is added it is in the interest of public justice and purely as a penalty, and not at all as a means of securing indemnity to an individual. Recessarily these contempts in their origin and punishment partake of the nature of crimes, which are violations of the public law, and end in the vindication of public justice; and hence are named criminal contempts. As described in the statute, an element of willfulness, or of evil intention enters into and characterizes them. They are a disturbance of the court which interferes with its performance of duty as a judicial tribunal; willful disobedience to its lawful mandate; resistance to such mandate willfully offered; contumacious and unlawful refusal to be sworn as a witness, or to answer a proper question ; and publication of a false and grossly inaccurate report of its proceedings.”

Rone of the elements recited by the learned judge are present in the case at bar and, as we have seen, no adjudication to that effect was made by the County Court. So that we must assume that if the defendant was guilty, it was as for a civil contempt. But the order appealed from must fail of its purpose in that regard because there is no adjudication that because of the defendant’s failure to appear on the 2d day of January, 1908, as directed by the order, the rights of the judgment creditors were defeated, impaired, impeded or prejudiced. And, as said by Mr. Justice Daniels in Sandford v. Sandford (40 Hun, 540), “ that fact must be ascertained and adjudged by the court directing the punishment which is to be imposed. (Code of Civ. Pro. §§ 2266, 2281; Swenarton v. Shupe

* 40 Hun, 41.) The order from which the appeal has been taken contains no such adjudication and because of that omission it fails to comply with what has been directed by these sections of the statute.”

In the case of Socialistic Co-op. Pub. Assn. v. Kuhn, No. 2 (51 App. Div. 583) the head note in part is as follows: “ An order, punishing a person for contempt of court, in a civil action, must contain an adjudication that he is guilty of the contempt and that the act complained of not only has a tendency to, but actually does, defeat, impair, impede or prejudice the rights or remedies of the complaining party; a recital that the punishment is inflicted ‘ for the wilful and contumacious disobedience of the defendants of the order of injunction herein, dated September 1, 1899, and for their contempt of this court,’ is insufficient.”

In the case of Boon v. McGucken (67 Hun, 251, a case decided at the General Term of this department) it was held ‘‘ That, assuming the proceeding to he for civil contempt, the order could not be sustained for the reason that it did not contain the adjudication and determination required by the Code of Civil Procedure in such a proceeding, viz.,that the act complained of is one ‘by which a right or remedy of a party to a civil action * * * may be defeated, impaired, impeded or prejudiced’ (§§ 14, 2266) ‘and that it was calculated to, or actually did, defeat, impair, impede or prejudice the rights or remedies of a party to an action ’ etc., (sec. 2281.) ”

Many other cases to the same effect might be cited. In the case at bar, while the affidavit upon which the order is based contains the general statement by the attorney for the judgment creditors that he “ alleges as he verily believes that the jdgt. ers. herein have been defeated in their rights and their remedy impaired by the failure of Kobert E. Jones to appear as directed by the judge’s order dated December 30th, 1907,” there are no facts stated in support of such allegation and, as we have seen, there is no adjudication to that effect by the court, which, under the authorities, we consider to have been essential. Indeed, upon the facts presented, it is difficult to see why the attorney for the judgment creditors did not proceed with the examination of the defendant when he appeared before the referee and offered to submit to an examination on the 4th day of January, 1908, the referee and the attorney for the judgment creditors both being then present. There is no suggestion that any transfer of property had been made by the judgment debtor in the meantime, and, so far as appears, all the facts might havé been ascertained by the judgment creditors as well on the fourth day of January as on the second, if their only purpose had been to procure an investigation to enable them to determine whether the judgment debtor had property subject to levy and sale under execution or which would authorize the appointment of a receiver.

We think that the order appealed from should be reversed, with costs and disbursements, and the proceeding to punish the defendant as for a contempt should be dismissed, with ten dollars costs.

All concurred.

Order reversed, with costs, and proceeding to punish the defendant as for a contempt dismissed, with ten dollars costs.

Matter of Swenarton v. Shupe.— [Rep. •