Opinion
May 20, 1910.
Yorke Allen, for the appellant.
Louis Marshall, for the respondent.
We find ourselves forced to the conclusion that the respondent's conduct, reprehensible though it was, did not constitute a contempt of court. On June 24, 1908, he signed an undertaking in order to release the levy of an execution against the property of one Koronsky. He then swore that he was worth $2,800 over and above all debts and liabilities, and his undertaking was that Koronsky would pay any judgment that might be obtained against him in the action. A judgment was obtained, the respondent refused to pay it, and the plaintiff had judgment against him. Being examined upon supplementary proceedings in March, 1909, he swore to a most incredible tale. He said that when he signed the undertaking in June, 1908, he had owned real and personal property worth about $3,800, and since that time had earned about $900. He then told a most extraordinary and unbelievable story as to how he had spent and dissipated all of this property, leaving himself penniless. It is quite possible that he never had as much property as he testified to, and it is incredible, if he ever had it, that he disposed of it as he swears he did. The court, however, accepting his statements as true, found, as it was quite justified in doing, that he had deliberately denuded himself of all his property in order to prevent the collection of any judgment that might be recovered against him on the undertaking. Accepting this finding as fully sustained by the proofs, we are constrained to hold, for the reasons well stated by Mr. Justice SEABURY, writing for the Appellate Term ( 67 Misc. Rep. 90), that the respondent had not been technically guilty of a contempt of court. The result is regrettable for the plaintiff has been greatly wronged. His experience adds another illustration to those which are frequently brought to our attention, of the insecurity of personal bonds dependent solely upon the continued solvency of the surety.
The order should be affirmed, without costs.
INGRAHAM, P.J., LAUGHLIN, CLARKE and MILLER, JJ., concurred.
Determination affirmed, without costs.