Leonard v. Jacobson

27 Misc. 325, 57 N.Y.S. 818

Opinion

O’Dwyer, J.

The finding in the order “ that the misconduct of the judgment debtor was calculated to or actually did defeat, impair, impede, and prejudice the rights and remedies of the judgment creditor to his actual loss and injury in the sum of $103.8.6, the amount of the judgment against the judgment debtor,” is without any support in the evidence submitted upon the motion and cannot be sustained. Reynolds v. Gilchrest, 9 Hun, 203; Donohue v. Lyons, 30 App. Div. 622.

In the absence of proof that the misconduct complained of did result in loss to the judgment creditor, the order should have been that such moderate fine be imposed as would pay the prosecuting attorney for his costs and expenses, and the debtor appear for examination.

The debtor concededly failed to appear on the return day, and the evidence fully justifies the finding that he wilfully disobeyed the order requiring him to appear for examination. For this misconduct the order fixed-the costs and expenses at $40, and after a careful examination, we are of opinion that that sum is .fair and reasonable.

It follows that the order appealed from should be modified by reducing the fine imposed to $40, and requiring the judgment debtor to appear and submit to an examination, and as so modified affirmed, without costs.

McCarthy and Corlan, JJ., concur.

Order modified by reducing the fine imposed to $40, and requiring judgment debtor to appear and submit to examination, and as modified affirmed, without costs. »