
    In the Matter of the Judicial Settlement of the Account of Max Scheuer and Ralph Scheuer, as Executors, etc., of Simon Scheuer, Deceased. Ralph Scheuer, Appellant; Sarah Friedman, Respondent.
    First Department,
    March 20, 1914.
    Executor and administrator — release of executor imprisoned for co l- ■ tempt — inability to endure imprisonment or to pay fine — renewal of application to punish for contempt.
    An executor who has been imprisoned for contempt in failing to pay over moneys pursuant to a final decree entered on his accounting, may be released from custody under section 775 of the Judiciary Law, where it appears that he is in a serious physical condition, and is unable to pay the fine imposed.
    But such release should be granted with leave to renew the application to punish for contempt, if the moving party can subsequently establish a change in the executor’s condition and ability to pay.
    Appeal by Ralph Scheuer from an order of the Surrogate’s Court of the county of New York, dated the 20th day of January, 1914, denying a motion for the release of the appellant from the custody of the sheriff of the county of New York, and also from an order of said court dated the 24th day of January, 1914, denying a motion for a reargument of the prior order.
    
      Walter E. Ernst of counsel [Olcott, Gruber, Bonynge & McManus, attorneys], for the appellant.
    
      Effingham N. Dodge of counsel [Thomas E. Rush, attorney], for the respondent.
   Clarke, J.:

The appellant was taken into custody October 1, 1913, under a commitment issued by the surrogate upon the order adjudging him guilty of contempt, the appeal from which order was decided by the opinion handed down herewith (161 App. Div. 525).

On December 9, 1913, he made a motion to be released from custody upon the ground of his inability to pay and the precarious state of his health. His motion was denied by an order made on the 19th of January, 1914, and a motion for reargument was denied by an order made on January 24, 1914, from which orders this appeal is taken.

In Matter of Strong (111 Ápp. Div. 281; affd., 186 N. Y. 584) this court said: “If as matter of fact the executor is really unable to pay the amount imposed as a fine for his default, the provisions of section 2286 of the Code of Civil Procedure may be invoked.” That section is now section 115 of the Judiciary Law (Consol. Laws, chap. 30; Laws of 1909, chap. 35), which provides as follows: “Where an offender, imprisoned as prescribed in this article, is unable to endure the imprisonment, or to pay the sum or perform the act or duty, required to be paid or performed, in order to entitle him to be released, the court, judge or referee * * * may, in its or his discretion, and upon such terms as justice requires, make an order directing him to be discharged from the imprisonment. ”

It appears from the papers that the appellant is fifty-three years of age; that in 1912 the business of Simon Scheuer & Sons was petitioned into involuntary bankruptcy and in September, 1913, the appellant filed a voluntary petition in bankruptcy. Both Simon Scheuer & Sons, a corporation, and Balph Scheuer have received their discharge as bankrupts. Thereafter he was employed as a traveling salesman, and, as appears by the affidavit of one of his employers, at the rate of $4,800 per year, but that said employment ceased' on December 31, 1913, and appellant is not now in the employ of or in any way connected with said firm or has any interest whatsoever therein. It appears by the affidavits of two physicians that he is suffering from arterio sclerosis, pains about the heart, vertigo, diabetes and Bright’s disease; that the symptoms clearly indicate that a continuation of the patient’s enforced confinement will result in gradual exhaustion and blood poisoning, leading to stupor and coma; that his condition is most serious. The physician duly appointed to attend the jail corroborates the diagnosis of the appellant’s attending physician and states, “from his experience that the further confinement of the said Balph Scheuer will undoubtedly lead to most serious and probably fatal results in a comparatively short time.”

The appellant has now been confined for about five months. He has lost his employment; he is in a serious physical condition, and his present inability to pay the fine which has been imposed upon him is established. There are other matters presented in the record unnecessary to enumerate, which tend to support our opinion that the case as presented comes within the purview of section 775 of the Judiciary Law, and that this court ought to exercise the power conferred, and that the appellant should he discharged from imprisonment as unable to endure the same or to pay the sum required.

The order appealed from should he reversed and the motion for his discharge granted, but, as the section referred to authorizes the court in its discretion to make such order upon such terms as justice requires, with leave to renew the application to punish as for a contempt, if the moving party can hereafter establish a change in his condition and ability to pay.

Ingraham, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.

Order reversed and motion for discharge granted, with leave to renew as stated in opinion. Order to he settled on notice.  