In re Seitz , 107 N.Y.S. 593 ( 1907 )

Per Curiam.

This is an appeal from an order granting a motion to punish the judgment debtor for contempt for failure to appear for examination in supplementary proceedings and imposing a fine of $186, the amount of the judgment in favor of the judgment creditor, together with the costs of the proceeding. It is the contention of the appellant that, in the absence of proof of actual damage, the court had no power to impose a fine in the amount of the judgment, but solely to impose such fine as the court in its discretion deemed proper to maintain the dignity of the court. Section 2281 of the Code, however, provides that, where the failure to obey such an order was “calculated to” or did actually defeat, impair, impede or prejudice the rights or remedies of a party to an action, the court may impose a fine; and the authorities hold that such fine may be imposed irrespective of whether actual damage is proven. Swenarton v. Shupe, 40 Hun, 41; Moffat v. Herman, 116 N. Y. 131. The mere fact that a fine imposed happens to he identical with the amount of the judgment in favor of the judgment creditor would not he ground for reversal of the order. The statute is remedial in character and certainly was intended to preserve and promote “ the rights or remedies of a party to an action,” so that it necessarily follows that a failure to comply with an order based thereon is “ calculated to ” defeat, impair, impede or prejudice such rights. The more serious point, however, is that raised by point 1, of defendant’s brief, that the judgment debtor was not guilty of contempt for the reason that he was not given a reasonable opportunity to appear for examination. It appears by the affidavit of the attorney for the judgment creditor submitted in support of the motion that said attorney and the judgment debtor, subsequently to the issuance of the order in supplementary proceedings, had a conversation over the telephone, at the termination of which said attorney “ told judgment debtor that he would hold the matter for thirty days, as he had promised, in order to give him an opportunity to arrange his matters so as to pay this judgment.” The attorney denies that he agreed to call the matter off, as claimed by the judgment debtor, but it is impossible to place any other construction upon the language admitted to have been used by the creditor’s attorney than that it was intended that the requirement of the order should not be insisted upon for thirty days, and that the attorney waived the right to make such examination on the return day of the order. Judgment had been entered and execution issued and there appears to have been no other matter to “ hold off ” save the examination in supplementary proceedings. The only other construction that might be placed upon the language so used would indicate an intent on the part of the attorney to-enter a default and hold the order of the court over the head of the debtor in order to compel the fulfillment by him of an agreement entered into subsequently to the issuance of the order, an abuse of the process of the court which would be deserving of condemnation and censure.

The order should be reversed, with ten dollars costs and disbursements.

Present: Giadebsleeve, Guy and Bruce, JJ.

Order reversed, with ten dollars costs and disbursements.