Opinion
June, 1904.
Isaac L. Miller, for the appellant.
William J. Lippmann, for the respondent.
In an action brought in the Municipal Court, second district, borough of Manhattan, New York, by one Goslin against Jerold M. Eberman for the recovery of a money judgment an attachment was issued upon which a city marshal levied upon property consisting of household furniture situated at the Graham Court Building, One Hundred and Sixteenth street and Seventh avenue. The plaintiff in the action subsequently recovered a judgment upon which an execution was duly issued and levied upon the property attached. An action was then brought by appellant's sister, who was the wife of the judgment debtor, against the marshal for the recovery of the property, she claiming to be the owner thereof, and a writ of replevin was delivered to the sheriff, together with an undertaking in the usual form, and pursuant thereto the property was taken from the possession of the marshal and has been removed beyond the jurisdiction of the court. The appellant was one of the sureties on the undertaking and failed to justify after being duly required so to do, and admits that, in consequence of the transfer of the property three or four days subsequent to his becoming a surety, he was unable to justify. The plaintiff in the replevin action made affidavit that the property levied upon was worth $1,500. The undertaking was given in the sum of $3,000, and the appellant made an affidavit in the usual form as a surety that he was worth that amount over and above his debts and liabilities and exclusive of property exempt from levy and sale under an execution. At the time he executed the undertaking there were judgments unsatisfied of record against him, on one of which proceedings supplementary to execution were pending, and four days thereafter, in that proceeding, he testified that he had no property with which to pay the judgment. Upon discovering these facts a motion was made in behalf of Goslin to punish the appellant for contempt of court, upon the ground that his affidavit upon the undertaking was false, and that Goslin was thereby deprived of the lien of his execution upon property which was ample to pay the judgment, and deprived of his right to have the judgment satisfied out of the property. The evidence satisfactorily showed that the affidavit of the appellant upon the undertaking was false. This rendered him liable to punishment for contempt of court, for he thereby enabled his sister to have the property removed from the lien of Goslin's execution, and his act directly obstructed and impeded the administration of justice and was calculated to impair and defeat the rights of Goslin. ( Lawrence v. Harrington, 63 Hun, 195; affd., 133 N.Y. 690; Nuccio v. Porto, 72 App. Div. 88; Foley v. Stone, 30 N.Y. St. Repr. 834; Simon v. Aldine Pub. Co., 14 Daly, 279; Keating v. Goddard, 8 Civ. Proc. Rep. 377.) Appellant was fined the amount of the judgment and costs and expenses of the contempt proceedings. His counsel contends that Goslin failed to show any damages resulting from the giving of the undertaking, and that the court was not justified in fining the appellant the amount of the judgment. The contempt proceeding was instituted for the purpose of redressing the injury to Goslin, and he was required to show not only that the false affidavit upon the undertaking might defeat, impede, impair or prejudice a right or remedy which he had as a judgment creditor, but, in order to warrant the court in imposing a fine equal to the amount of the judgment, he was called upon to show that he had sustained an actual loss in that amount. (Code Civ. Proc. §§ 2266, 2284; Moffat v. Herman, 116 N.Y. 131; Erie R. Co. v. Ramsey, 45 id. 637; Burnham v. Denike, 53 App. Div. 407, 409; Fall Brook Coal Co. v. Hecksher, 42 Hun, 534; Luedeke v. Coursen, 3 Misc. Rep. 559; 23 N.Y. Supp. 314.) If the sheriff had retained the property so that it could have been redelivered to Goslin upon the surety failing to justify as required by law (Code Civ. Proc. § 1702), the court, doubtless, would not have been warranted in fining the appellant the amount of the judgment. It appearing, however, that the property has passed beyond the jurisdiction of the court, it is manifest that Goslin has been deprived of his right to have the execution satisfied out of this property, and that he has no redress except an action against some wrongdoer. It is not a pre-requisite to the punishment of a party for contempt that the party to the action in whose interest the contempt proceeding is instituted shall have exhausted all other remedies for making good the damages. ( People ex rel. Surety Co. v. Anthony, 7 App. Div. 132; affd., 151 N.Y. 620; Buffalo Loan, Trust S.D. Co. v. Medina G. E.L. Co., 68 App. Div. 414, 420; Matter of Hay Foundry Iron Works, 22 id. 87; Rowley v. Feldman, 84 id. 400; King v. Barnes, 113 N.Y. 476; Clark v. Bininger, 75 id. 344; Matter of Morris, 45 Hun, 167, 171; 10 N.Y. St. Repr. 50, 53.) We are of opinion, therefore, that upon these facts Goslin's damages, caused by the appellant's contempt, were presumptively the amount of the judgment.
It follows, therefore, that the order should be affirmed, with ten dollars costs and disbursements.
O'BRIEN, INGRAHAM, McLAUGHLIN and HATCH, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.