In re Wilkes

30 N.Y.S. 431, 62 N.Y. St. Rep. 224

• Court: New York Court of Common Pleas
• Decided: May 17, 1894
• Status: Published

Opinion

DALY, C. J.

It appeared that a mechanic’s lien was filed by Mahoney and Wood upon premises owned by Donnington, and the 'latter, desiring to have the lien discharged, caused to be offered ■to the lienors’ attorney a bond executed by himself and Wilkes as surety in |1",500, and asked the attorney to consent that the court fix the amount of the security to be given at that sum. The attorney of the lienor declared at once that he knew about Wilkes, that he was insolvent, and that it would be futile to proceed further thereon. The suggestion seems to have been adopted, and the bond withdrawn. Application is now made to punish the parties concernedforcontempt in offering the insolvent as surety. It is a conclusive answer to the •application that no right of a party to an action or special proceeding has been affected by the offer of the bond. The power of the court to punish for contempt civilly is limited to the cases in which the conduct ■complained of may defeat, impair, impede, or prejudice the right or remedy of a party to a civil action or proceeding (Code, § 14), or is calculated to do so (Code, § 2281). There was no action or proceeding pending, the lienors not having been noticed to appear in court for the justification of the sureties, as required by the me•chanic’s lien act (Laws 1885, c. 342, § 24, subd. 6). The proposal for consent to the fixing of the amount of the bond was no part of any judicial proceeding, for until the statutory notice had been given no proceeding was instituted. The lienors, therefore, were not parties to any action or proceeding, and the case is not within •the provisions of the Code. Motion denied, without costs.