In re Blumenthal

Gildersleeve, J. The judgment debtor, Simon Buttner, was ordered by the Special Term of the City Court to hand over a certain ring to Maurice B. Blumenthal, as receiver of the property of said Buttner. Said Buttner did hand over a ring to the receiver, but the latter claimed that it was not the ring in question. 'Accordingly he obtained an order to show cause why Buttner should not be punished for contempt. The motion was duly argued, and affidavits were submitted by both sides. The court decided, from the evidence thus submitted on the motion, that Buttner had not delivered to the receiver the ring which the court had ordered to be delivered to- him, but had practiced a deceit on the court by delivering to said receiver another ring, of little or no value, instead of the ring in question. The court also found, as a matter of fact, that by reason thereof the rights and the remedies of said Blumenthal, as such receiver, had been materially injured, prejudiced and impaired. The court, therefore, decreed said Buttner guilty of contempt, and ordered him either to deliver the ring in question to the receiver, within a fixed time, together with $10, costs of the motion, or to pay, within said time, to the receiver $50, found from the evidence to be the value of the ring, together with $10, costs of the motion; and, in case of.failure to comply with these requirements, the court ordered the commitment of said Buttner to prison until the said requirements had been fulfilled. From this order Buttner appealed to the General Term of the City Court, where the order was affirmed, and thence to the Appellate Term.of the Supreme.Court. The Appellate Term cannot, upon appeals from the City Court, consider the weight of evidence, but is confined to a consideration of the questions .of law. Bogan v. Wright, 22 Misc. Rep. 94. The adjudication of the court, in which the alleged contempt occurred, is conclusive that the party committed the act whereof he was convicted, and of its character, when that misrht, according to the circumstances, be meritorious or criminal; although it cannot [706] establish as a contempt that which the law entitled a party to do. People v. Hackley, 24 N. Y. 75. As the Appellate Term, must accept as an established fact that .Buttner did not hand over the ring in question to the receiver, but gave him,.instead thereof, another ring of little or no value, the •only question to be determined is this, viz.: Did this neglect or refusal to obey the order of the court constitute contempt? The court had jurisdiqtion to make the order requiring Buttner to hand . over the ring in question to the receiver; and, on Buttneris refusal to obey the order, contempt proceedings could properly be instituted, as done in the case at bar. McKelsey v. Lewis, 3 Abb. N. C. 64; Code, §§ 2269, 2281 and 2283. The conduct of Buttner, as found by the court below, clearly • •constituted a disobedience to the lawful mandate of the court (Code of Civil Procedure, § 3343, subd. 2), and, consequently, Buttner was'guilty of contempt, under section 14, subdivision 3 of the Code of Civil Procedure; for his acts as alleged in the affidavits submitted by the receiver on the motion, and as found by the Special . Term, materially injured, prejudiced and impaired the rights and remedies of said Blumenthal, as such receiver. See Sandford v. Sandford, 40 Hun, 540; Code of Civil Procedure, § 14. The fine imposed in the case, at bar was within the power of the . court. Code of Civil Procedure, §§ 2284, 2285; Moffatt v. Herman, 116 N. Y. 131. This is a contempt punishable civilly, under ■section 14 of the Code, and not a criminal contempt, under section .8 of the Code; therefore, the case of Stubbs v. Ripley, 39 Hun, 626, holding that costs of motion cannot be imposed in a criminal contempt does not apply. FTor does the case of Bradbury v. Bliss, 48 N. Y. Supp. 912, apply to the case at bar. The defendant has been ■duly adjudged guilty of the contempt charged in an appropriate proceeding for the purpose, and the penalty has been imposed. ■The fact that the court has given him an opportunity to comply with the terms of the order, before a commitment shall issue, does not affect the validity of the order, or bring it within the case last above cited, the facts of which are entirely different from those in ■the present case. For the reasons above stated, the order appealed from must be affirmed, with $10 costs, and disbursements. Beekmakt, P. J\, and Q-iegebich, J., concur. Order affirmed, with $10 costs, and disbursements.