Mengel v. Larkin

Order adjudging judgment debtor guilty of a criminal contempt and confirming report of official referee reversed upon the law and the facts, with costs, motion denied, without costs, and fine remitted. The admission of the testimony of the witness Wesselhoft was erroneous. He was not employed at the bank in question when appellant cashed the cheek, and had no personal knowledge of the time when the check was cashed. His testimony was based upon records in the bank. (See Saldan Construction Co., Inc., v. Kasenetz, 225 App. Div. 819.) Furthermore the respondent did not sustain the burden of proving beyond a reasonable doubt that appellant willfully refused to obey the court’s mandate. (Matter of Elias, 40 App. Div. 632; Saal v. South 784 Brooklyn Railway Co., 122 id. 364.) The order appealed from is also defective in that it does not recite that “ the conduct of the party has been such as to defeat, impair, impede or prejudice the right or remedy of the other party to the proceeding.” (Feinberg v. Kutcosky, 147 App. Div. 393.) (See, also, Judiciary Law, § 770, and cases cited.) Lazansky, P. J., Rich, Young, Seudder and Tompkins, JJ., concur.