Napoli v. Shiner Realty Corp.

48 A.D.2d 704, 368 N.Y.S.2d 56, 1975 N.Y. App. Div. LEXIS 9755

Opinion

In an action to foreclose a mortgage on real property, the appeal is from an order of the Supreme Court, Kings County, dated November 8, 1974, which, after a hearing, inter alia, adjudged appellants in contempt of an order of the same court, dated October 3, 1974, which, inter alia, appointed a Receiver. Order reversed, without costs, and action remanded to Special Term for the taking of further testimony and the making of a new determination. At the conclusion of plaintiffs’ evidence, appellants moved to dismiss the contempt petition. Their motion was denied. Thereupon, they sought to call their witnesses, but the trial court refused to hear them; it adjudged appellants in contempt of the prior order without the benefit of further testimony. Appellants were thereby precluded from presenting proof that their actions were not in violation of the order appointing the Receiver. Since resolution of that question was central to the contempt adjudication, the matter must be remanded for the taking of appellants’ proof. Hopkins, Acting P. J., Latham, Christ, Brennan and Shapiro, JJ., concur.