
    George L. Jaquish, Appellant, v. George W. Kelly and Others, Respondents.
    Third Department,
    May 5, 1915.
    Trial — effect of order granting new trial upon fine for contempt for failure to comply with judgment.
    Where defendants, after being adjudged in contempt for failing to comply with a judgment and required to pay a ñne and the plaintiff’s costs and expenses, are granted a new trial upon the ground of newly-discovered evidence, the order providing that the judgment “be and hereby is vacated and set aside and that a new trial thereof be had, and that the defendants pay all the costs and disbursements of said action to date, together with ten dollars costs,” such order does not relieve the defendants from the payment of the costs imposed in the contempt proceedings, but upon compliance with the order the amount paid under the judgment may be credited thereon. The order adjudging the defendants guilty of contempt remains in full force until the costs are paid.
    Appeal by the plaintiff, George L. Jaquish, from an order of the Supreme Court, made at the Delaware Special Term and entered in the office of the clerk of the county of Delaware on the 6th day of March, 1914, restraining proceedings to enforce a prior order adjudging the defendants guilty of a civil contempt.
    
      O’Connor & O’Connor [Charles R. O’Connor of counsel], for the appellant.
    
      A. G. Patterson, for the respondents.
   Kellogg, J.:

The defendants were adjudged in contempt for failing to comply with the provisions of a judgment of the Supreme Court, and were required to pay a fine of $150 and $703.61, plaintiff’s costs and expenses.

By order dated August 18, 1914, the court granted a new trial to the defendants of the action in which the judgment was recovered, the order providing that the judgment “be and hereby is vacated and set aside and that a new trial thereof be had, and that the defendants pay all the costs and disbursements of said action to date, together with ten dollars costs.” The order was granted upon the ground of newly-discovered evidence, and was evidently considered a favor to the defendants as it imposed upon them the costs of the action and of the motion. The costs taxed in the action and entered in the judgment have been paid. The costs granted by the order adjudging defendants guilty of civil contempt have not been, paid.

I think the fair interpretation of the order granting the new trial is that the defendants are to pay all costs and disbursements which have been made in the litigation up to that time, not only the taxable costs entered in the judgment itself, but the $703.61 adjudged to the plaintiff as costs in the contempt proceedings.

Evidently the court did not intend to vacate the judgment and grant a new trial unless the costs were paid, and the order should he interpreted as conditioned upon the payment of the costs. The order finding the defendants guilty of contempt remains in full force until the costs are paid, and when the costs are fully paid then the judgment is of no further force, and we may assume the contempt proceedings fall with it. In granting the defendants a new trial upon the ground of newly-discovered evidence and imposing upon them the costs and disbursements, the court did not intend to relieve them of the costs imposed by the contempt order.

The judgment gave the plaintiff $150 damages and the costs, and it was paid soon after its recovery. If the defendants comply with the order granting a new trial the judgment falls, and the plaintiff has no right to retain the $150 damages which were paid to them upon the j udgment. It follows that the j udgment is still in force, and the order punishing for contempt is effective until the defendants comply with the terms of the order granting a new trial.

The $150 which the plaintiff has received under the judgment should be credited upon the amount of costs awarded to the plaintiff in the contempt order, thus reducing the amount to $553.61, which balance defendants should pay before the order vacating the judgment and granting anew trial becomes effective.

The order appealed from, therefore, should be modified by providing that upon payment to the plaintiff of $553.61, plaintiff’s costs and expenses fixed by the contempt order, the sheriff is then restrained and enjoined from proceeding as stated in the order, and as so modified affirmed, without costs.

All concurred.

Order modified as per opinion, and as modified affirmed, without costs.  