First Nat. Bank v. Fitzpatrick

PUTNAM, J. I think the order of February 13th, under which the defendant was imprisoned, and from which the appeal is taken, was erroneously granted for the reasons pointed out in Fischer v. Raab, 81 N. Y. 235. In that case the plaintiff was directed to pay certain referee fees, and failed to do so. ■ An order to show cause was granted, requiring him to pay the said fees within a certain time or show cause why he should not be committed for contempt in disobeying the order and not paying the fees. On the return of the order, plaintiff not having paid the money, the court made an order that he be committed to the common jail of the county, there to remain charged upon the contempt until he should pay the fees and $10 costs. The order was reversed by the court of appeals, that court holding that the misconduct which can be treated and punished as a contempt must be such as to defeat, impair, impede, or prejudice a right or remedy of a party to a civil action, “and that the alleged misconduct does have that effect must be made to appear and be adjudicated.” The court held in that case that it did not appear that the alleged offense affected or impaired the defendants’ rights, and also used the following language: “And there does not appear to have been any adjudication that the alleged misconduct defeated, impaired, impeded, or prejudiced any right or remedy of the defendants. So far as appears in the papers before us, the sole purpose of the proceeding was to compel payment for the benefit of the referee, as the defendants were not liable to pay him.” It will be seen that the order from which the appeal is taken is subject to one of the objections pointed out in Fischer v. Raab, supra, as to the order in that case. There is no adjudication that the alleged misconduct of defendant defeated or in any way affected or prejudiced any right or remedy of the plaintiff. In the subsequent decision of the court of appeals in the same case—Fischer v. Langbien, 103 N. Y. 84, 8 N. E. 251—it was not intended to overrule the doctrine established when the case was first before that court. The other cases cited by the learned counsel for respondent, if incon 17 sistent with Fischer v. Raab, supra, must be deemed overruled by that authority. See, also, Swenarton v. Shupe, 40 Hun, 41-43; Sandford v. Sandford, Id. 540, 541; Boon v. McGucken, 67 Hun, 251, 22 N. Y. Supp. 424; Code Civ. Proc. §§ 14, 2281-2283. There is a further objection to the order in question. It assumed to commit the defendant to jail for an offense that he could not commit until after the order took effect. The order to pay the receiver the sum of $2,916.45 necessarily preceded the offense of defendant in disobeying it. Its direction to defendant to pay the-money to the receiver forthwith must be understood as a command to pay the said money immediately after the order was signed,, a copy served, and a demand made for the money. There was no order defendant was compelled to obey until it was signed by the-judge, and a copy served on him, and a demand made. If he then refused to obey, another order was required. The contempt could not precede the making of the order. It is true that the court, on February 13th, could have made an absolute order, if properly drawn, committing defendant for contempt on account of his previous refusal to pay the money up to the receiver; but no such, order was made. Defendant was required to pay to the receiver the money in question or stand committed. After the making of the order he should have had an opportunity to make said payment, and, if not made, another order was required. See Brinkley v. Brinkley, 47 N. Y. 40-47; Kuhn v. Kuhn (Sup.) 4 N. Y. Supp. 952; Rice v. Ehele, 55 N. Y. 518-521. I think, therefore, that the order in the first above entitled action should be modified by striking therefrom the words, “or stand committed to the Clinton county jail until such delivery be made, or until discharged by law or order of this court,” at the end thereof, and inserting in the place of the words so stricken out, “upon the demand of said receiver for said sum;” and that the order in the second above entitled action or proceeding should be reversed, with the usual costs and disbursements on both appeals, and the defendant discharged from arrest. All concur.