Opinion
July Term, 1901.
John M. Bowers, for the appellant.
L. Laflin Kellogg, for the respondent.
Present — VAN BRUNT, P.J., O'BRIEN, INGRAHAM, McLAUGHLIN and HATCH, JJ.
We do not think we are warranted in disturbing any of the conclusions reached by the learned judge at Special Term, except that relating to defendant's punishment. In addition to requiring him to pay $473.75 to cover the expenses, the order directed further that the defendant be confined in the county jail for a period of ten days. This we do not think the court had power to do.
Section 2285 of the Code of Civil Procedure provides: "Where the misconduct proved consists of an omission to perform an act or duty which it is yet in the power of the offender to perform, he shall be imprisoned only until he has performed it and paid the fine imposed. In such a case the order and the warrant of commitment, if one is issued, must specify the act or duty to be performed and the sum to be paid. In every other case, where special provision is not otherwise made by law, the offender may be imprisoned for a reasonable time, not exceeding six months, and until the fine, if any, is paid; and the order and the warrant of commitment, if any, must specify the amount of the fine and the duration of the imprisonment."
Here the contempt of the defendant consisted in his failure to obey a writ of mandamus compelling him to vote for the issuance of certain corporate stock of the city of New York. The order to show cause why he should not be punished was served on him on August 2, 1899, on which same day he voted for the stock as commanded by the writ. As his contempt thus consisted in an omission to perform an act or duty which was performed before there was a decision or final order in the contempt proceedings, the court was powerless to imprison the defendant. The distinction between contempts which consist of omissions to do acts which, when done, relieve from imprisonment and those affirmative acts of resistance to the orders of the court wherein imprisonment may be imposed on the offender, has been pointed out in King v. Barnes ( 113 N.Y. 476); Fenlon v. Dempsey (7 N Y Supp. 435); King v. Flynn (37 Hun, 330).
The order adjudging the appellant guilty of contempt should accordingly be modified by striking out the provision relating to imprisonment, and, as so modified, affirmed, without costs to either party.
Order modified as directed in opinion, and, as modified, affirmed, without costs to either party.