Socialistic Co-operative Publishing Ass'n v. Kuhn

51 A.D. 583, 64 N.Y.S. 933

Opinion

McLaughlin, J.:

There is no doubt that the court has the power by way of punishment to strike out an answer of a defendant for a contempt of court. This was'’settled, if any doubt theretofore existed, by the recent decision of Devlin v. Hinman (161 N. Y. 115). But in a civil action before a défendant can be punished for a contempt of court, either by the imposition of a fine or the striking out of his answer, there must first be an adjudication that he is not only guilty of á contempt of court, but that his act — of which the opposing party complains—not only has a tendency to, but actually does, defeat, impair, impede or prejudice the rights or remedies of. the party complaining. (Fischer v. Raab, 81 N. Y. 235; First National Bank v. Fitzpatrick, 80 Hun, 75 ; Boon v. McGucken, 67 id. 251; Fall Brook Coal Co. v. Hecksher, 42 id. 534; Sandford v. Sandford, 40 id. 540 Matter of Swenarton v. Shupe, Id. 41.)

In the order appealed from there is no adjudication either that the defendants have been guilty of a contempt, or that the acts of which the plaintiff complaint have defeated or impaired, impeded or prejudiced its rights or remedies in any respect. It is true that the order recites that the answer is stricken out “ for the wilful and contumacious disobedience of the defendants of the order of injunction herein, dated September 1st, 1899, and for their contempt of this court.” ' • By this recital the court gives its reason for striking ■ out the defendants’ answer, but without saying that it is not equivalent to an adjudication that the defendants have committed a contempt of court, it surely cannot be construed to adjudge that their acts constituting such contempt, defeat, impair or .prejudice the rights or remedies of the plaintiff.

For the failure, therefore, of the court to adjudge the defendants ■guilty of a contempt of court, and that their acts constituting such contempt have been of injury to the plaintiff, the order appealed from must be reversed, with ten dollars costs and disbursements,, and the motion to strike out the answer denied, with teti dollars costs, without prejudice, however, to the plaintiff’s right to renew the motion upon other or additional papers.

Patterson, Rumsey, Ingraham and 'Hatch, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, without prejudice to plaintiff’s, right to renew upon other or additional papers. .