Wolfe v. Knight

15 Misc. 438, 37 N.Y.S. 210, 72 N.Y. St. Rep. 790

• Court: City of New York Municipal Court
• Decided: January 15, 1896
• Status: Published

Opinion

McCarthy, J.

The order of September 17, 1895, which purports to adjudge the judgment debtor guilty of misconduct constituting a civil contempt omitted to declare that it had been ascertained and determined that the misconduct complained of defeated, impaired, impeded or prejudiced the rights or remedies of the party to the proceeding, and because of this alone it was fatally defective ( Wolf v. Buttner, 6 Misc. Rep. 119 ; 26 N. Y. Supp. 25) and must be reversed.

It is not enough that property is found in the hands of the judgment debtor.

Besides, the proceedings appear to have been dismissed by an order of Justice Conlan and in proper form.

If there was any irregularity in the mode of dismissal, plaintiff could only take advantage of it by application to set it aside and revive the proceedings. Without such the court had no jurisdiction and could not punish the defendant.

Order is, therefore, reversed, vacated and set aside, with costs.

Fitzsimons, J., concurs.

Order reversed, with costs.