Opinion
July 10, 1940.
Nathan Rosenberg, for the judgment creditor.
No appearance for the judgment debtor.
Motion to punish judgment debtor for contempt for failure to appear for examination in supplementary proceedings on June 13, 1940, the return day of the order. Failure to appear originally for examination in pursuance of an order in supplementary proceedings, or upon an adjourned day, is a civil contempt and not a criminal one. ( Feinberg v. Kutcosky, 147 A.D. 393.) A judgment debtor who merely disobeys an order in supplementary proceedings to appear and be examined cannot be fined the full amount of the judgment without a showing that the failure to obey the order resulted in a loss to the judgment creditor of the amount of the judgment. The fine in such case is to be limited to the costs and expenses of the judgment creditor and an additional sum for punishment not exceeding the limit provided by section 773 Jud. of the Judiciary Law. ( Weddle v. Grzeczezak, 189 A.D. 493. See, also, German Fur Dyeing Corp. v. F. M. Fur Co., Inc., 142 Misc. 6.) There is no allegation in the moving papers, or any evidence of the amount representing such costs and expenses, and in the absence thereof they cannot be allowed. ( Matter of New York State Labor Relations Board v. Kleen-Rite Process Corp., 258 A.D. 59.) "Where it is not shown that such an actual loss or injury has been produced, a fine must be imposed, not exceeding the amount of the complainant's costs and expenses, and two hundred and fifty dollars in addition thereto, and must be collected and paid, in like manner." (Judiciary Law, § 773.) In Slackman v. Kaufman (160 N.Y.S. 786, 789) the court held that "to warrant the laying of a fine to cover the plaintiff's damages, those damages must be proved the same as in an action." (See, also, Moffat v. Herman, 116 N.Y. 131; Dejonge v. Brenneman, 23 Hun, 332; Buffalo L., T. S.D. Co. v. Medina G. E.L. Co., 68 A.D. 414, 418; Ross v. La Cagnina, 68 Misc. 497.)
Motion granted to the extent that the judgment debtor is adjudged in contempt and is fined the sum of twenty-five dollars.
Submit order.