Goldsmiths & Silversmiths Co. v. Haas

Bijur, J. The order appealed from contains no recital to the effect that the offense charged “ was calculated to, or actually did, defeat, impair, impede or prejudice the rights or remedies ” of the judgment-creditor. The absence of a recital to this effect is fatal to the order. Obermeyer v. Adisky, 123 App. Div. 272, 274; Guerrier v. Coleman, 135 id. 46. I find nothing in the amendment of section 767 of the Code (Laws of 1911, chap. 368), “ Definition and form of an order,” to affect this determination. The mere authorization of what has come to be' known as a “ short form order ” does not excuse the omission of the recital of a determination of a substantive factor of the issues involved. It may- be remarked also, that the amount of the fine appears excessive. The judgment-debtor, in her affidavit in opposition, explains her absence, and offers to appear any time for examination. There is no intimation that she has endeavored to evade service or conceal herself-in any way. On the contrary, it appears that her residence is well known, and that it was and is easy to find and serve her. Hnder the circumstances, a fine of fifty dollars, plus the costs and ascertained expense of the motion, would have been sufficient. Matter of Husted, 37 Misc. Rep. 237; Reynolds v. Gilchrest, 9 Hun, 203; Kreiser v. Kitaoka, 36 Misc. Rep. 174; Leonard v. Jacobson, 27 id. 325. The fact that no actual loss to the creditor was shown to have been incurred does not prevent the imposition of the fine under section 773 [212] of the Judiciary Law (formerly Code Civ. Proc. § 2284), provided it appear and be adjudicated under section 770 (formerly section 2281 of the Code) that the offense was “ calculated to, or actually did, defeat, impair, impede or prejudice the rights or remedies ” of the judgment-creditor. People ex rel. Springs v. Reid, 139 App. Div. 551, 554, 555. See also Ross v. La Cagnina, 68 Misc. Rep. 497; Matter of Seitz, 56 id. 616. Guy and Lehman, JJ., concur. Order reversed, with ten dollars costs and disbursements, and motion remitted to the court below for appropriate, action.