Germansky v. Guterman

Miller, J.:

On the 9th day of July, 1907, an order in proceedings supplementary to execution was served on the appellant, the judgment debtor, requiring him to appear for examination before a justice of the City Court on the 11th day of July, 1907, at ten o’clock in the forenoon. The defendant swears, and it is not specifically denied, that immediately prior to that time he arranged with the judgment creditor to pay the judgment in installments, and that the latter agreed to notify his attorney to discontinue the proceedings, and said that it would not be necessary for the appellant to appear. The appellant also swears that he did in fact appear at the time and place named in the order, waited a half hour and, no one appearing for the judgment creditor, went away. However, his default was noted- It appears without dispute that? either before or directly after the default, it was arranged between the parties that the appellant should pay the judgment in weekly installments of twenty-five dollars. On the' 11th day of July, 1907, the day of the default, the attorney of the judgment creditor wrote the appellant a letter in which he said : “ I have been advised by my client, Mr. Germansky, that some arrangements have been made with regard to a.settlement of the above-entitled matter. The Court had noted your default on account of your failure to appear this morning, but no advantage will' be taken of you by reason of . that fact.” Thereafter the appellant paid sixty-five dollars on the judgment. On the 7th of December, 1908, an. order to show cause why the appellant should not- be punished for contempt of court was obtained, and the proceedings thereon resulted in the order appealed from, adjudging the -appellant guilty of contempt for failing to appear for examination on the 11th of July, 1907.

It is plain that the default, if one occurred, was technical, not willful, and that it was due solely to the' negotiations for an adjustment. It is equally plain that the letter of the respondent’s attorney, hereinbefore referred to, was an unequivocal waiver of 'that default. If, instead of writing as he did, the attorney had instituted proceedings to punish the appellant for contempt, the latter would doubtless have appeared and offered to submit to an examination ; and, even if he had been adjudged to be in contempt, he Would not have been fined the amount of the judgment. At least, an order imposing such a fine undér these circumstances could no.t hayei been sustained. A year and a half later such a fine is imposed, nominally for that contempt, but really, as the record shows, for what the appellant did or failed to do thereafter.

The orders of the City 'Court and of the Appellate Term should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Determination and order reversed, with ten. dollars costs and disbursements, and motion denied, with ten dollars costs.