Lawrence v. Harrington

17 N.Y.S. 649, 70 N.Y. Sup. Ct. 195, 43 N.Y. St. Rep. 413, 63 Hun 195, 1892 N.Y. Misc. LEXIS 429

• Court: New York Supreme Court
• Decided: February 8, 1892
• Status: Published

Opinion

Pratt, J.

The papers clearly established that Joseph H. and Alvin W. Harrington, Jr., sureties, swore falsely upon a justification as sureties before a notary, with an intent to deceive the court as to their responsibility. They well knew that the purpose was to stay an execution against their father, and that result was accomplished by such false swearing. The facts are too clearly proved to require discussion. It is also clear that the rights of the plaintiffs have been seriously prejudiced by such deceit and false swearing. The plaintiffs were prevented from collecting their judgment, which constituted, under section 14 of Code of Civil Procedure,¹ a civil contempt. It was an interference with the due and orderly progress of the action to its ultimate close, and inpeded the right of the plaintiffs to collect the judgment. King v. Barnes, (Sup.) 4 N. Y. Supp. 247; affirmed in 113 N. Y. 476, 21 N. E. Rep. 182. It was not essential that the sureties could be convicted of perjury, as their conduct was a fraud upon the plaintiffs and the court, and prevented the course of justice. The distinction between a civil and criminal contempt has been pointed out too often to require any comment. By falsely making the statutory oath, they intended to and did defeat the remedy of the plaintiffs, and this prejudiced and injured their rights. Egan v. Lynch, 49 N. Y. Super. Ct. 454; Foley v. Stone, (Sup.) 9 N. Y. Supp. 194. The presumption arising from the plaintiffs’ papers is that the plaintiffs were damaged to the amount of the judgment which they were prevented from collecting. Order reversed; with costs and disbursements, and rehearing ordered at special term.

1 Code Civil Proc. § 14, provides: “A court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding pending in the court maybe defeated, impaired, impeded, or prejudiced, in either of the following cases: * * * (4) A person, * * * for any other unlawful interference with the proceedings therein. ”