
    B. Indiviglio & Sons, a Copartnership Composed of Benjamin Indiviglio, Samuel Indiviglio, Mario Indiviglio and Serafino Indiviglio, Appellants, v. Louis Joseph Miccio and Others, Defendants, Impleaded with Heating & Plumbing Finance Corp., Respondent.
    First Department,
    June 6, 1941.
    
      Louis Sanders of counsel [Thomas J. McManus with him on the brief], for the appellants.
    
      Arthur A. Atha, for the respondent.
   Per Curiam.

The direction contained in the judgment in this case required the defendant Heating & Plumbing Finance Corp. “ to turn over to the said referee the aforesaid bond and mortgage and all of the amounts heretofore collected thereon by it.” The bond and mortgage were so turned over to the referee in compliance with this direction. The amounts collected, however, have not been returned. The first excuse given for the failure fully to comply is that the mortgage was collateral for the payment of the note also involved herein. This contention was disposed of in the action adversely to the respondent’s claim. The second excuse to the effect that the payments which were made by the owner of the property were made partially to discharge the note and were, therefore, not payments under the mortgage is not sustained by the proof. The owner was not hable on the note. His sole interest was to protect the mortgage. The respondent has obviously refused to obey the mandate contained in the judgment. The motion to punish it for contempt should have been granted.

The orders should be reversed, with twenty dollars costs and disbursements, and the motion to punish for contempt granted, with leave to the defendant-respondent to purge itself of the contempt by paying the money within ten days after service of a copy of the order to be entered hereon.

Present — Martin, P. J., O’Malley, Townley, Glennon and Untermyer, JJ.

Orders unanimously reversed, with twenty dollars costs and disbursements, and the motion to punish for contempt granted, with leave to the defendant-respondent to purge itself of the contempt by paying the money within ten days after service of a copy of the order to be entered hereon. Settle order on notice.  