
    Bennett Brothers, Inc., Plaintiff, v. Floyd Bennett Farmers Market Corporation et al., Defendants.
    Supreme Court, Special Term, New York County,
    October 4, 1962.
    
      
      Dreyer & Traub for defendants. Lipper, Shinn, Keeley & Dannenberg for plaintiff.
   George Tilzer, J.

The defendants move for an order compelling plaintiff to pay over the excess of a fine paid by them. [See 22 Misc 2d 833.] The plaintiff by cross motion moves for an additional allowance for counsel fee on the appeal. The factual situation behind the instant proceeding is as follows: Heretofore, on a motion to punish the defendants for contempt this court imposed a fine of $1,000, and of $500 costs and disbursements, pursuant to section 773 of the Judiciary Law. The defendants appealed and the order was modified, reducing the fine to $250, hut not the costs and disbursements, and otherwise affirmed, with $20 costs and disbursements. (16 A D 2d 897.) No stay had been granted on the appeal. Therefore, the defendant paid the fine imposed by this court. The plaintiff’s attorney has withheld $350 of the excess for his costs and disbursements on appeal.

Under the circumstances presented here, the plaintiff is only entitled to the costs and expenses awarded by this court and affirmed by the Appellate Division. It is noted that the minority opinion on the appeal of this matter indicated that the matter of costs and disbursements should be remitted to Special Term for the purpose of taking proof of expenses. However, the majority stated that the nature of the proceedings and the papers in the record amply support the fine of $500 for costs and expenses.” It can be assumed that said court made such determination with knowledge of the costs and expenses on appeal. In any event this court believes no more than the amount awarded should be allowed.

Finally, section 773 of the Judiciary Law is concerned only with the amount of fine. Where no actual loss is shown, ‘ a fine must be imposed, not exceeding the amount of the complainant’s costs and expenses, and two hundred and fifty dollars in addition thereto ”. Therefore, at the time of the original order the total fine was fixed by this court. While it was modified on appeal, if we were to grant an additional award, it would in effect be an increase of the fine heretofore established. Accordingly, the motion is granted and the cross motion denied.  