
    The People ex rel. Leopold Wise v. Edward J. H. Tamsen, as Sheriff.
    (Supreme Court, New York Special Term,
    May, 1896.)
    1. Contempt — False justification as surety.
    . One who falsely justifies as surety on an undertaking given to discharge an attachment is guilty of contempt, under subdivision 4 of section 14 of the Code..
    2. Same — Commitment. '
    Where a person adjudged guilty of a contempt is fined or directed to perform some act-within his power as a punishment therefor, the com- I mitment need not specify the term of imprisonment for nonperformance. !
    Habeas Corpus proceedings.
    Blumenstiel & Hirsch, for-, relator.
    Tracy, Boardman & Platt, for sheriff.
   Smyth, J.

The relator sued out a writ of habeas corpus directed to the. sheriff of this county, claiming by his' petition for the writ that he was unlawfully imprisoned and detained by said sheriff under a commitment issued against him for a civil contempt, a copy of which commitment he makes a part of his petition. On being brought before me it was claimed by the relator:

First. That the court by which the commitment was granted had exceeded its authority, and that it had no jurisdiction to grant said commitment.

Second. That the commitment, on. its face, was- defective in both matter and substance.' .

The sheriff returned that he held the relator in his custody under and in pursuance of a commitment, a copy of which is annexed .to. the relator’s petition. (This return was not traversec by the relator who, through bis counsel, conceded upon the hearing before me that all of the allegations and recitals in the warrau of' commitment were true.) In this commitment, among other facts it is recited, that in an action commenced in this court, whereit Henry J. Eddy and another, residents of this state, were plaintiffs and L. & C. Wise Co., a foreign corporation, was defendant that the relator and one Charles Wise were respectively presiden and treasurer of said corporation, and that they were the active officers in control, of its business and affairs; that at the commencement of said action a warrant of attachment was duly granted by a justice of this court, upon the application of the plaintiffs against the defendant’s property, that it was duly delivered to the sheriff of this county, and that it was levied upon property belonging to the defendant in an amount amply sufficient to satisfy in full the claim of the plaintiffs, amounting to. the sum of $7,034.41, and the costs and disbursements of said- action. That the relator and Charles Wise," then being president and treasurer respectively of the said defendant, at the city of blew York, and acting in behalf of the defendant, made and executed an undertaking, in due form, under the provisions of section 688 of the Code of Civil Procedure, to discharge said attachment; that they severally appeared in person before a justice of this court and severally falsely justified before said justice upon said undertaking as good and sufficient sureties, they being at that time wholly insolvent, insufficient, irresponsible, and not able to assume the obligations of- such undertaking; that they were severally guilty of deceit, fraud and misconduct in that they did then and there, severally and each for himself, falsely testify, by way-of justification, as sureties upon said undertaking, that They were severally worth not less than the sum of $100,000 in real and personal estate, over and above all liabilities, whereas in fáct they were at the time of justifying as such sureties wholly insolvent; that upon such false testimony, and relying upon the truth thereof, the undertaking was approved by the said justice, an order was thereupon entered at a Special Term of this court, discharging the attachment and the lien thereunder; that actual loss, damage and injury was thereby sustained by the plaintiffs, in that the plaintiffs having by virtue of said attachment and the levy made thereunder upon the property of the defendant acquired a lien on said property by means whereof the full claim of the said plaintiffs, with the costs and disbursements in said action, was amply secured; that, subsequently, a judgment was recovered by the plaintiffs, against the defendant for the sum of $7,256.43 damages and $335.39 costs, making in all the sum of $7,591.82, a judgment-roll was filed and judgment duly entered and docketed in the office of the clerk of the city and county of blew York; that an execution upon the judgment was issued to the sheriff of the city and county of blew York, which execution was subsequently returned wholly unsatisfied, and that no part of the judgment has ever been paid or in any manner settled, and that' said judgment is now in full force and effect.

That, after the commencement of said action, a receiver of all the property of the def endant -therein was appointed by the Court of Chancery of .the state of' Hew Jersey, on the ground that the said ■ company was wholly insolvent. That notice was- duly and personally served upon the relator and Charles Wise as. sureties upon said undertaking, requiring them tó pay the judgment recovered by the plaintiffs, and that, the relator and Wise severally wholly failed, neglected and refused to pay said judgment. That an action was thereafter commenced in this court on behalf of the said plaintiffs against the said relator and Charles Wise as sureties upon the undertaking given by them- to recover the sum of $7,500, the amount specified in said undertaking, with interest thereon and costs; that the summons-and complaint therein were personally served upon the relator and the said Charles Wise, and that judgment was subsequently duly rendered and recovered therein, which judgment was duly entered and docketed in the office of the clerk of the city and county of Hew York for .the sum of $7,586.53 damages and costs; that an execution was issued upon said judgment to the sheriff of .this county against-the relator and said Charles Wise; that the said sheriff was unable to satisfy or collect the said judgment in whole or in. part, and that said execution was returned by him wholly unsatisfied;-no.part of .said judgment has since been paid, and that it is now in full force and effect; and within sixty days after the justification by the relator and Charles Wise, as-sureties, upon said undertaking, they severally, with intent to defraud, impair, impede and prejudice the rights and remedies of the plaintiffs, and to hinder and delay them in the collection of their said judgment and to prevent the enforcement of the undertaking in whole or in part, severally fraudulently conveyed and disposed of all the real estate in which at' the time and on the occasion of their justification as sureties they claimed to have a .valuable interest, amply sufficient, to secure the payment in full of the plaintiffs’ claim in the said action, and that by reason of such misconduct, the relator and Charles Wise had severally been guilty of misconduct, deceit, fraud and other acts in justifying as such sureties which were calculated to and actually did impair, impede and prejudice the rights ánd remediés of the plaintiffs in. their said action by depriving tihem of the lien and security which they acquired by reasonof the.levying of the said attachment on said property; that an order' was granted by a justice of this court requiring the relator and the said Charles Wise to severally show cause why they should not he punished for such fraud, deceit, misconduct and contempt, which order was duly personally served' upon them respectively; that the said relator and the said Charles Wise severally appeared pursuant to said order in person and by their attorneys- and that such proceedings were thereafter had pursuant thereto that a further order was made at a Special Term of this court, whereby the said relator and the said Charles Wise were ordered, directed and required to pay to the plaintiffs in said action or to their attorneys, after the service of a certified copy thereof upon them or -upon their said attorneys, the sum of $7,962.42, with interest thereon from the date of said order; and it was therein provided that in case of the failure of the relator and the said Wise to pay. the amount as directed, therein, the plaintiffs were authorized, without further notice to them or their attorneys and upon proof to the satisfaction of the court of the service of the said order in the manner therein required, and default in the payment of the money therein ordered to be paid either in whole or in part, that a motion might be made at a Special Term of this court, on a day therein specified or on any day thereafter, that a warrant issue without notice for the commitment of the said relator and the said Charles Wise to the county jail of this city and county until the said sum of money should be paid in full or until they should be discharged according to law. It then recites that a stipulation was entered into between the relator and the said Charles Wise- and the plaintiffs in the said action, providing for a stay of proceedings upon said order upon the payment in installments by the relator and sáid Charles Wise of the aforesaid judgment upon said stipulation on days therein appointed and specified, and that in default of making such payments the plaintiffs in said action were entitled to apply ex parte and without notice to the' relator and to the said Charles Wise, or their attorneys, for an order vacating said-stay of proceedings, and for the forbearance on the part of the plaintiffs and the said attorneys by reason of said stipulation, the plaintiffs were to be in nowise prejudiced or impaired in them rights and proceedings under the said order of the 13th of November, 1894, made in pursuance of said stipulation; that due proof had been made of the neglect and refusal of the relator and Charles Wise to comply with the terms of said stipulation and the order entered thereupon, and that a further order was made therein vacating said stay of proceedings; that the sum of $3,150 had been paid by the relator and Charles Wise on account of their aforesaid liability, and that the sum of $4,950.85 now remains due and unpaid on account of said fine, after deducting all credits to which the said relator and the said Charles Wise are entitled, and that a personal demand had been made upon the relator and the said Charles Wise to pay said sum, and that the payment thereof had been refused; that the said relator and Charles Wise' were severally adjudged guilty of a disobedience of . said order of the 13th of November) 1894, requiring the payment of such sum of money, specified as aforesaid, and that the said order is in full force and effect and operative, and that by'reason of their failure, to obey the order they are severally liable'to punishment therefor as for a contempt of this court pursuant to the Code of Civil Procedure, and that their failure,.neglect and refusal are calculated to and did actually impair, impede and prejudice the rights and remedies of the plaintiffs in said action and the rights and powers of this court; that by a further order made at the Special Term of this court it was provided that the relator and the said Charles Wise should be severally committed to the county jail, there to remain until, the said sum of $4,980.85 should be fully paid, or until the said relator and Charles Wise be sooner discharged by the court according to law, and that a warrant issue out of and under the seal of the Supreme Court of the state of New York directed to.said sheriff, requiring him to arrest the relator and the said Charles Wise, and to keep them in his custody in said county jail until they shall have fully paid the said sum of money or until they should be sooner discharged by the court according to law.

On the hearing before me it was claimed that the relator not being a party to the- action in which the wrong is alleged to have been committed, and not having been proceeded against as a party to the action, the court had no jurisdiction over him, neither had it power to render the judgment or make the order under which said commitment was made arid under which he now stands committed, and in support of this claim reference was made to section 14 of article. II of the Code of Civil Procedure, which provides that “A court of record has power to punish by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party-to a civil action or special proceeding, pending in the court, may be defeated, impaired, impeded or prejudiced in either of the following-cases:

Subdivision 2. A party to the action or special proceeding, for putting in fictitious bail or a fictitious surety, or for any deceit or abuse of a mandate or proceeding of the court.”

And it was urged by the counsel for the relator that the relator not being a party to the action in which the undertaking was given, was not embraced within the provisions of subdivision 2 of section 14 of the Code, applicable to the punishment of parties for the violation of its orders. If the proceedings now pending before me were instituted under said subdivision 2 of section 14 of the Code, it is clear that I would be compelled to discharge the relator from imprisonment under the warrant; but the learned counsel who represented the relator was laboring under a mistake in supposing that said proceedings were taken under that subdivision, for these proceedings were not instituted under that subdivision of the section, but were instituted under subdivision 4 of the same section, which provides that “A person, for assuming to be an attorney or counselor, or other officer of the court, and acting as such without authority; for rescuing any property or person in the custody of an officer by virtue of a mandate of the court; for unlawfully detaining or fraudulently and willfully preventing, or disabling from attending or testifying, a witness, or a party to the action or special proceeding, while going to, remaining at, or returning from; the sitting where it is noticed for trial or hearing; and for any other unlawful interference with the proceedings therein."

It was under the provisions of the last clause of this section that the proceeding which resulted in the issuing of the warrant upon which the relator is now held was instituted."

The authorities, to which reference is hereafter. made, clearly establish that the relator by falsely justifying as a surety upon the undertaking and thereby obtaining a discharge of the attachment and the release of the property upon which it was levied (which he admits that he did), thereby defeated a provisional remedy by preventing the full payment of the plaintiffs’ judgment, and by so doing was clearly guilty of unlawfully interfering with the proceedings therein.

In Lawrence v. Harrington, decided by the General Term of the Second Department, and reported in 63 Hun, 195, and subsequently affirmed by the Court of Appeals, in 133 N. Y. 690, it was held that the sureties upon an undertaking on appeal in said action, who are not parties to the action, and who had justified as sureties upon said undertaking, and who testified falsely as to their sufficiency as sureties, were guilty of a contempt under said last-mentioned subdivision of the Oode. Pratt, J., who delivered the opinion of the court* distinctly held that under subdivision 4 of ■section 14 of the Oode. the sureties were persons guilty of an interference with the progress of the action,, and that by it the right of the plaintiffs was impeded; that they were prevented from collecting their judgment, which constituted under said section a contempt, and that it was an interference with the due and orderly progress of the action to its ultimate close, and impeded the rights. of the plaintiffs in collecting their judgment.

The same doctrine was held in the case of King v. Barnes, 51 Hun, 550, which was subsequently affirmed, and is reported in 113 N. Y. 476.

There are other authorities bearing upon the same subject, which it is not deemed necessary to cite, which clearly establish that the court had jurisdiction and the right to grant the warrant of commitment. under which the relator is held.

The second objection is as to the validity of the-warrant, because there was nó time limited in it for the imprisonment of the. defendant. ' . .

An examination of the provisions of the Oode has satisfied me that this objection is without force and that the warrant contains all the necessary averments which the provisions of the Oode require.

By section 2284 of the Code of Oivil Procedure, the court is vested with the authority to impose a fine in á ease of this character. By this section it is provided that “ If an actual loss or injury has been produced to a p’arty to an action or special proceeding by reason of the misconduct .proved against the offender, and the case is not one where it is specially prescribed by law that an action may be maintained to recover damages for the loss or injury, a fine sufficient to- indemnify the aggrieved party must be imposed upon the offender, and collected and paid over to the aggrieved party, under the direction of the court,” and that the payment and acceptance of such a fine constitutes a bar to such an action by the aggrieved party to recover damages for the loss or injury. •

In this case it is not only established, but it is also conceded, that the plaintiffs in the action in which the attachment was issued sustained actual loss' and injury by reason of the misconduct and contempt charged in the commitment on the part of the 'relator in refusing to perform the act or duty which the court required him to do, and which it is yet in his power to perform.

In People ex rel. Borst v. Grant, 41 Hun, 351, the judgment provided, among other things, that a certain note should be delivered up to the plaintiff and canceled. The defendant failed to comply with the direction, and for that failure he was held liable to be proceeded against as for a contempt, and that the order directing his imprisonment until he should deliver up the note to the plaintiff was upheld. It was, therefore, necessary, under section 2285 of the Code, to specify only the act or duty to be performed and the sum to be paid.

The relator’s omission to obey the order of this court for the payment of the fine imposed upon him constituted an act which, in judgment of law, was within his power to perform, and upon its performance he will be entitled to Ms discharge.

In the Matter of Morris, 45 Hun, 167, Mr. Justice O’Brien, in delivering the opinion of the court, cites the case of Davison, reported in 13 Abb. Pr. 138, in which Mr. Justice Ingraham held that “ If. it appears on the return to a writ of habeas corpus that the prisoner is detained in custody for a contempt wMch is specifically and plainly charged in the commitment (as it is in this case) by some court having authority to commit for the contempt charged (as this court undoubtedly has), it is the duty of the officer conducting the proceeding forthwith to remand the prisoner into custody.” It is further claimed on the part of the relator that the amount of the fine imposed exceeded the amount for wMch the relator and Charles Wise rendered themselves liable upon the undertaking to discharge the attachment, and that no greater amount could be recovered in the action which was brought against them to enforce them liability upon said undertaMng than the amount specified therein; TMs was a matter which should be and doubtless was brought to the attention of the justice who made the order imposing the fine, and if the relator and his codefendant were aggrieved by the decision arrived at, their remedy was either by appeal or by a motion to correct the alleged error, if any existed.

. Ho appeal appears to have been taken from said "order, nor does there appear to have been any motion made to correct the alleged error, and by the execution of the stipulation above referred to, the relator, in my opiMon, waived the alleged error as to the amount of the fine which was imposed.

. I have carefully examined the brief and replying brief which have been presented to me by the relator’s counsel, and the cases . cited by him, none o£ which, in my opinion, have- any application to the questions involved in the matter pending before me. Entertaining. those views, it; follows that the writ must be dismissed arid . the prisoner remanded to the custody of the sheriff. ...

• Writ dismissed and relator, remanded.  