
    BRUSH against LEE.
    
      Court of Appeals ;
    
    
      March Term, 1867.
    Supplementary Proceedings.—Commitment eor Contempt.—Precept.—Order to show Cause.
    In proceedings supplementary to execution, if the judge finds the defendant able to pay the judgment, and orders him to pay the same within a time specified, and also to pay an amount of costs stated, the defendant, if he fails to comply with such order, may be proceeded against as for contempt, and may be, imprisoned until such order be complied with.
    It is not necessary in such case that the proceedings be instituted by attachment and interrogatories. Disobedience to an order for the payment of money may be immediately punished by a precept for the imprisonment of the defendant. But if an order to show cause be taken, the defendant is not entitled to object to that mode of proceeding.
    On the return of such an order to show cause, he cannot insist on interrogatories, as in the case of an attachment.
    The power to punish the defendant for contempt in'such a case is not affected by the fact that the judgment on which the proceedings supplementary to execution were founded, was a judgment merely for costs.
    Appeal from an order.
    This was an appeal by the defendant from an order of the general term of the supreme court of the first district, affirming an order of .Mr. Justice Barnard, made in proceedings supplementary to execution, committing the defendant to prison as for a contempt in not paying the plaintiff the amount of two judgments recovered'by the plaintiff against the defendant.
    The facts are as follows:
    The plaintiff Brush, as executor of one Robert Hyslop, deceased, commenced a suit against the defendant Lee, and one Hiles to remove a cloud upon the title to certain real estate in Brooklyn, which had been sold under an execution against said Hyslop, and recovered a judgment on May 9, 1864, for $186.79, and costs. Subsequently on May 17, 1865, another judgment was recovered against him for $111.25 and costs. Execution was issued upon said judgment, and having been returned unsatisfied, on January 29, 1866, supplementary proceedings were commenced against the defendant. On the following day an order that the defendant should make discovery concerning his property, &c. was made and duly served upon him. The proceedings hereunder were regularly adjourned at his request, until March 10, 1866, when he was duly sworn, and his examination was thereupon again adjourned, at his own request, until March 13, 1866. On the 13th Lee failed to attend. Upon an affidavit showing these facts, an order to show cause, returnable on the 16th inst., why Lee should not be punished for his misconduct, was, on March 14, 1866, duly issued by Mr. Justice Babhard. This order, and the affidavit upon-which it was granted, were duly and personally served upon Lee the same day. On March 16 Lee appeared personally upon the return of the order to show cause, and an order, expressing that it was upon his consent, was made, that he pay certain amounts therein specified, being the amounts due on the plaintiff’s judgments' against him, and $30 costs of the supplementary proceedings, within five days. This order was modified ex-parie, three days later, by striking out the recital of Lee’s consent, and inserting instead an admission that he had money enough to pay the judgment. This order was duly and personally served upon Lee on the day upon which it was made. The order was not complied with, however, although payment was duly and personally demanded of Lee after the five days had expired. Upon affidavits showing these facts, find upon all the prior proceedings, an order to show cause, returnable on March 27, why Lee should not be punished for his misconduct and contempt was, on March 23, 1866, issued by Mr. Justice Barhard. This order, and the affidavits upon which it was granted, were duly and personally served upon Lee, on the same day. Lee attempted to show cause, and read in opposition two affidavits of his own, two affidavits of Ms counsel, James J. Colwell, and affidavits of George W. Wiles and David Melio, "but lie gave no reasons in any of said papers for his disobedience of said orders, and did not deny such disobedience. He was adjudged guilty of contempt in having, among other things, willfully disobeyed the order ■ of March 16, 1866, and was committed until he should pay the sums which he was required to pay by the order of March 16, 1866, and also the sum of ten dollars for plaintiff’s costs of the contempt proceedings, together with the fees of the sheriff on the precept and the commitment.
    
      E. J. Sherman, for the defendant, appellant.
    I. The order of commitment was erroneous. (1.) Because the defendant neither appeared in person, nor was brought before the justice who issued it. (2.) Because neither interrogatories were exhibited to the defendant, nor were answers to interrogatories required of him (Pitt v. Davidson, 37 Barb., 112 ; 2 Edm. Stat., 556, § 19).
    II. The commitment expressly contravenes the provisions of the statute of 1847, inhibiting imprisonment for non-payment of interlocutory costs, or for contempt of court in not paying costs, except in the exceptional cases specified (4 Edm. Stat., 630).
    III. The statute authorizing courts to punish for contempt for not paying money when ordered, does not apply to the case in question. (1.) Section 3 of that act (2 Rev. Stat., 534; 2 Edm. Stat., 522), provides a remedy of fine and imprisonment for the non-payment of money ordered by the court to be paid, only in cases where, by law, execution cannot be awarded for .the collection of such sum, or for disobedience to orders, &c., of the court. (2.) Section 4 of the same act (2 Edm. Stat., 554),—which authorizes a precept or commitment to issue against a person who has refused to pay money ordered by a rule of court,-—must be considered as qualified by the terms of section 3 above mentioned. (3.) The terms of section 5 of the same act, —which provides that in all cases other than those specified in section 4, the court shall make an order to show cause why such party should not be punished, or shall issue an attachment to arrest such party and bring him before the court,—show that the legislature intended to provide for the personal presence in court of the party charged with the contempt, whether his presence is secured by an order to show cause or by an attachment. (4.) The provisions of section 7 also contemplate that the personal presence in court of the party charged with the contempt shall be indispensable to the issuance of final process of commitment (Watson v. Fitzsimmons, 5 Duer, 620).
    IY. Interrogatories are necessary when the party sought to be punished is proceeded against by an order to show cause (Watson v. Fitzsimmons, 5 Duer., 629, distinguished).
    Y. In answer to the second point of the respondent, that a precept might have been issued instanter upon Lee’s refusal to pay, it is sufficient to say that such precept could only be issued instanter for a contempt committed in the immediate presence of the court. In this case, Lee was never before the court upon the proceedings for contempt (see Mr. Justice Sutileiíl Aim’s dissenting opinion). The authorities cited by respondent are, therefore, not applicable. The authority of a court of record to punish instanter for a contempt committed in its immediate presence is not questioned.
    YI. The propositions stated under the respondent’s second point are untenable. (1.) The fact of entry of judgment for costs does not change the character of the demand. There is no merger. (2.) The very terms of the judgment are, that the party recover so much money for his costs.
    YII. The several sums of $30 and $10 which the defendant was ordered to pay under the penalty of commitment could have been collected otherwise than by a commitment. (1.) Costs payable by orders are collectable by execution, under section 2 of the act of 1847 (4 Edm. Rev. Stat., 630). Process in the nature of a fieri facias against personal property may be issued for the collection of such costs founded on such order of court. (3.) Sections 297, 301, and 302 of the Code do not remove the doubts wnich may have arisen relative to the power of imprisonment for the non-payment of costs under this act. They do not repeal the above-mentioned statute, and are to be construed with reference thereto (See note f to section 302 of the Code).
    VIII. The order committing the defendant to jail until the payment of the judgment for costs, and the sum of $40 costs not included in the judgment, was erroneous, and should be reversed, with costs.
    
      George O. Barrett, for the plaintiff, respondent.
    I. Where a party is proceeded against by an order to show cause why' he should not be punished for his misconduct, the filing of interrogatories is unnecessary.- Interrogatories are required by the statute in those cases only where the proceedings are by attachment (The opinion of the general term, which distinguishes the present case, in part, from Pitt v. Davidson, 37 Barb., 97, overrules the latter in respect to the filing of interrogatories; Yates v. Lansing, 9 Johns., 396 ; Albany City Bank v. Schermerhorn, 9 Paige, 372 ; Watson v. Fitzsimmons, 5 Duer, 629; S. C., affirmed in court of appeals, Dec. 31, 1858; McCarton v. Van Syckel, 10 Bosw., 697; 2 Edm. Rev. Stat., 554, §§ 3, 5, 19-24). It was claimed below that the order should have been modified in respect to costs. This was no good ground for modification, and the court adopted the uniform practice in imposing the costs and expenses of the proceedings as a part of the fine.
    II. A precept might have been issued instanter upon the defendant’s refusal to pay the amount which he admitted to be in his possession, and which he was thereupon duly ordered to pay (2 Edm. Rev. Stat., 554, § 4 ; Code, §§297, 301, 303, note d; People v. King, 9 How. Pr., 97; "Wicker v. Dresser, 13 Id., 33; Dresser v. Van Pelt, 15 Id., 19; Reynolds v. McElhone, 20 Id., 454; People v. Kelly, 22 Id., 309; Kearney’s Case, 13 Abb. Pr., 459). (1.) The fact that the judgment upon which the plaintiff proceeded was for costs, does not exclude the case from the above statutory provision, or bring it within the act of 1847 (4 Edm. Rev. Stat., 630, ch. 390, §§ 2, 3). The costs were merged in the judgment, and it was for the purpose of collecting the latter that the proceedings were instituted. The judgment for costs is not different from any other judgment. Costs are allowed to the prevailing party; but such party pays his counsel irrespective of the judgment (for costs) which the law has awarded him against his adversary. This judgment, then, is, as between the plaintiff and the defendant, the same as any other judgment, and cannot be deemed “costs” within the meaning of that section which prohibits the issuing of a precept for the non-payment of costs. (2.) As respects the sum of $30 and $10 allowed, the costs are not interlocutory within the meaning of the statute, and no execution could have issued for their collection (Livingston v. Fitzgerald, 2 Barb., 396). (3.) These costs were a mere adjunct (in the shape of the “ costs and expenses of the proceedings” authorized by the statute, whether the proceedings are by attachment, order to show cause, or precept) to the sum of money consisting of the judgment, required to be paid. (4.) But, whatever doubt there may have been under the act of 1847, it is removed by the Code (Code, §§ 297, 301, 302, and cases thereunder above cited).
    III. It is submitted, therefore, that, viewing the proceedings with reference to either branch of the statute, the order should be affirmed. As to the fact of the defendant’ s contumacy, there can be no question; and the misconduct alleged is nowhere denied.
   Scrugham, J.

It appears from the recital in the order of March 16, 1866, and from the statements in the affidavit of the defendant Lee, that on that day he personally appeared in court in obedience to the order to show cause of March 14, 1866. He then admitted that he had money and property sufficient to pay the judgments of the plaintiff; and thereupon an order was made requiring him to pay, within five days,' the amount of money therein specified, being the sums due on said judgments, and $30 for the plaintiff’s costs of the proceedings supplementary to execution. It was a sufficient answer to the point that this was not an order for the payment of money in a case where, by law, execution could not be awarded for the collection of the sum, that the order was made in proceedings supplementary to execution, and that execution for the collection of money it directed the defendant to pay, could not be awarded upon it. It was founded upon the return of an execution unsatisfied, and the confessed ability of the defendant to pay the amount of the judgment upon which such execution issued.

The statute “of proceedings for contempt, to enforce civil remedies and to protect the rights of parties in civil actions,” excepts the case of disobedience to an order for the payment of money from the cases wherein proceedings must be instituted either by attachment or order to show cause ; and in this case the court, upon the facts stated on the application for the order to show cause, was empowered immediately to award a precept for the imprisonment of the defendant. The defendant cannot be heard to complain that this course was not adopted. The order to show cause gave him an opportunity to which strictly he was not entitled, viz: to be heard in answer to the alleged contempt before his imprisonment should be ordered. The court in granting it did not lose the power to order his imprisonment, which was acquired by proof of his failure to comply with the order of March 16, but merely postponed its exercise until it could be ascertained whether he would offer any sufficient ■ excuse for his non-compliance. As the case was not one of those in which the statute requires an order to show cause or an attachment to issue, it was not necessary that the practice as to proofs, which prevails hi such cases, should be adopted, but the order was to be regarded only as an ordinary order to show cause, on the return of which proofs are made by affidavits. The question whether an examination of the defendant, upon interrogatories, is necessary on the return of the order to show cause required by the statute, does not, in my judgment, necessarily arise; but as it is discussed by the counsel, it is perhaps proper to consider it.

The statute regulates the practice in cases under it commenced by attachment, but is silent as to that which is to be pursued when the proceedings are commenced by order to show cause. In those cases, in the late court of chancery, when the defendant appeared and denied the contempt, it was the practice to file interrogatories and proceed substantially in the same manner as upon the return of an attachment; but when, as in this case, the party appeared, but did not deny the alleged misconduct, the court would at once proceed, without requiring interrogatories to be filed, to make a final decision and award the proper punishments (Albany City Bank v. Schermerhorn, 9 Paige, 372). The statute gives the complaining party the choice of two methods of proceeding ; one of which enables him to bring his adversary personally before the court for examination, while by the other he can only require him to answer by affidavit. That this distinction was contested is apparent from the fact that the provisions made for the examination of the defendant on interrogatories refer only to cases commenced by attachment. The advantage of such an examination is to the complaining party, enabling him, in effect, to cross-examine his adversary, a privilege he has not when, as on the return on an order to show cause, the party proceeded against responds by affidavit, and that party has no reason to complain if his opponent choose a proceeding in which he cannot avail himself of this advantage without a special order of the court.

The proceeding was not against the defendant for contempt in not paying costs, but in not obeying an order made in proceedings supplementary to execution. The power to make such an order, and to punish disobedience of it, is not affected by the nature of the claim upon which the judgment upon which the execution issued was granted; but depends solely upon the return of the execution unsatisfied, and the ability of the judgment debtor to pay it.

The order should be affirmed.

Order affirmed.  