
    In the Matter of the Application of the Westminster Realty Corporation, Owner, for an Order Discharging a Mechanic’s Lien filed by Benjamin G. Hitchings, Lienor, Respondent. Westminster Realty Corporation and Homer J. Beaudet, Appellants.
    Second Department,
    January 24, 1908.
    Contempt—fictitious bond to discharge mechanic’s lien — when, moving papers sufficient—burden to show excuse—when president of corporation proper party'— waiver of oral examination — defects in order not complained of.
    On a motion to punish a corporation and its president for contempt in furnishing fictitious sureties on a bond given to discharge a mechanic’s lien, a finding that the defendants knew of the fictitious character of the sureties is warranted when it appears that the bond was obtained' from one engaged in the business of furnishing straw bail, and that the bond was paid for by the defendants..
    On proof of such facts by affidavits, the burden is on the defendants to excuse ■ the act, and a mere allegation of the president that he had no “personal acquaintance” with the sureties is. insufficient for that purpose, especially when the defendants took no steps to discharge the order vacating the lien, made no explanation of how the bond was secured, or claimed that they were in any way imposed upon.
    Under subdivision 2 of section 14 of the Code of Civil Procedure, putting in a fictitious surety by which the right of remedy of a party to a civil proceeding may be defeated, impaired, impeded or prej udiced, is a civil contempt; aind it is enough to show that the party moved against, did any of these things in order to make it incumbent on' him to exonerate himself.
    In a proceeding to punish a corporation for contempt in filing a bond with fictitious sureties, the president who executed the bond in the corporate name is a proper party.
    In such proceeding any right to an examination by oral testimony is waived by submitting the case on affidavits without request for such examination.
    Although an order of imprisonment for contempt does not limit the duration of imprisonment in case the fine be not paid, the defect will not be considered on appeal, if not complained of by the appellant.
    Appeal by the petitioner, Westminster Realty Corporation and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the comity of Kings on the 16th day of September, 1907, adjudging the appellants guilty of contempt of court and lining them therefor, directing their imprisonment on failure to pay the fine.
    
      Gilbert W. Minor, for the appellants.
    
      Lynn W. Thompson, for the respondent.
   Gaynor, J.:

In a proceeding for the discharge of á mechanic’s lien on the property of the appellant corporation, it presented and filed a bond with two sureties for the amount of the lien, and obtained an order thereon canceling the same. The president of the said corporation executed the said bond in its name. The two sureties were fraudulent. They owned no property, and their affidavits of justification, stating parcels of real estate owned by them, were false. They were obtained by one Bough who was in the business of furnishing straw bonds and bail, and there is enough in the moving papers to enable a finding to be made that the said bond and sureties were paid for by the appellants. It is not-to be presumed that they were furnished for nothing. The case is one of such gross fraud on the court and the lienor that the appellants are not to' be presumed innocent of such fraud simply because it is impossible to show every detail of their employment of and dealing with Bough and the said sureties. Bough and liis- men certainly did not act as volunteers and for nothing. Courts do not shut their eyes to legitimate inferences. The appellants. obtained a bond from a source that they could not help knowing by ordinary attention was fraudulent and corrupt, and the learned court below was warranted "in drawing the conclusion from all of the facts and earmarks that they did know.

The moving papers were enough to put the appellants on' their defence. They presented the fraudulent bond, and it was for them to excuse themselves for so doing. This they failed to do. The president in his affidavit say's nothing of Bough, and only says of the two sureties that he had no “.personal acquaintanceship” .with them. He abstains from saying he knew nothing of them, and all explanation of how he got them. The only other affidavit for the appellants, that of their attorney in the procéeding for the cancellation, is also wholly reticent on the same head. . Neither affidavit gives any facts in respect of the procuring of the sureties; and it should be added that the appellants never undid the wrong by having the order discharging the lien vacated, but have left it in force and taken all of the benefit of it.

It is held of the practice in cases of contempts in Slater v. Merritt (75 N. Y. 268), as stated in the head note, that' “ suspicious circumstances merely may, if unexplained, be in some cases suffi eient, but.are insufficient when they are met by positive and explicit testimony explaining them and fully clearing the party from all complicity with the persons doing the act.” The facts against the appellants were more than suspicious. They exposed a gross fraud on the court and the lienor, of which the appellants were the bene ficiaries, and remained such after the fraud was fully exposed in court. They presented and filed the fraudulent bond, and make no explanation' of how they procured it, or. tending tp show 'that they were imposed, upon by Bough or any one else.

The appellants were found guilty of a civil contempt. As is pointed out in People ex rel. Negus v. Dwyer (90 N. Y. 406) the statute distinguishes, between criminal contempts and civil contempts, in that a “ wilful ” disobedience is a criminal contempt, while a mere disobedience by which the right of a. party to an action is defeated or hindered may be a civil contempt. This distinction is made by the words of the statute (Code Civ. Proc. §§ 8, 14).

Subdivision 2 of section 14 makes putting in fictitious bail or a fictitious surety ”, or “ any deceit or abuse of a mandate or proceeding of the Court ”, by which a right or remedy ” of a party to a civil action or proceeding may be defeated, impaired, impeded, or prejudiced”, a civil contempt. It is enough that the party moving to punish for contempt show that the party moved against did any of these things in order' to make it incumbent on the latter to explain and exonerate himself. That the appellants put in a fictitious bond and fictitious sureties is undisputed. The affidavits of the sureties in respect of the property they alleged they owned was wholly fictitious ; and in addition to that there is sufficient evidence to find that one of such sureties was personated by another both in signing the bond and making the affidavit.

The said subdivision in terms applies only, to “a party to'the action or special proceeding ” as punishable, but the practice has been to include these who participate in the. act of the party, and the president of the appellant' corporation has been properly included in this proceeding (Lawrence v. Harrington, 63 Hun, 195; Matter of Hopper, 9 Misc. Rep. 171).

The appellants make the point that they were entitled to have an examination by oral testimony. It is enough that they did not ask for it, but on the contrary rested their defence on ' affidavits. If they wanted such a hearing (or- interrogatories filed, which is the régnlar-'practice), they should have pursued that course. - By submitting the case on affidavits they waived it (Rapelje on Contempts, sec. 122),

■The order does not limit the duration of imprisonment in case the fine be not paid, as is pointed out in the respondent’s brief, but as the appellants have not. made any point or complaint of that we do not consider it. ■ ■ ' ■ ,

The order should be affirmed.

Woodwaed, Jenks, Rich and IVIilleb, JJ., concurred.

Order affirmed, with ten dollars costs and- disbursements.  