
    Sarah L. Snow, Respondent, v. Charles E. Shreffler, Defendant. James O. Sebring, Appellant.
    Fourth Department,
    December 29, 1911.
    Contempt — technical violation of order by attorney — attorney and client — release of judgment debtor from imprisonment — damages — fine — discharge of debtor — court — adjourned term.
    "An order to show cause why a judgment debtor imprisoned for contempt should not be released having been served on the judgment creditor's attorney, he asked for a two Weeks’ adjournment. The attorney for the judgment debtor thereupon telephoned to his counsel in another city. The "latter told him to stipulate for one week’s adjournment only. Subsequently, however, the attorney signed a stipulation for a two weeks’ adjournment, but failed to inform his counsel thereof.' Upon the return of the order to show cause, the counsel, pursuant to the stipulation which he believed had been made, requested a week’s adjournment. The court granted the request, but, believing that he would have no jurisdiction to hear the matter ■ at. an adjourned term unless both parties consented, he directed the counsel to notify the opposing attorney of the adjournment to that term. The counsel promised to do so, but neglected it, supposing that the stipulated adjournment was for but one week. On the adjourned day an order was granted on default releasing the judgment debtor. The case had excited public interest and all the steps therein were reported in the local newspapers.
    The debtor was financially irresponsible, and it was not until about three weeks after his release that the attorney for the judgment creditor made a motion to vacate the order on the ground that the stipulation had been violated. The motion was granted, but the debtor left the State before he could be apprehended. Subsequently an order was made adjudging the judgment debtor’s counsel guilty of contempt for perpetrating a fraud on the court and fining him the amount of the judgment and costs.
    Held, that the technical violation of the direction of the justice to notify the opposing attorney of the adjournment was insufficient to authorize so drastic an'order.
    The evidence in such a case should establish at least with reasonable certainty the guilt of the accused counsel,
    A lawyer should not be punished for contempt where his violation of an order is merely technical.
    
      It seems, that the judgment' debtor, who was a man of family, having been imprisoned eight months, was' entitled of right to be discharged under section 174 of the Judiciary Law.
    
      Proof must be given of the damages which an .injured party has suffered by the willful violation of an order before a fine can be imposed in contempt proceedings upon the person violating it, to reimburse the injured party for his loss.
    Since the judgment debtor was insolvent, and since a preliminary adjudication in bankruptcy had been made against him, it cannot be said, in the absence of proof, that the damage to the judgment creditor by the debtor’s discharge was the amount of the judgment and costs.
    Even costs cannot be imposed unless it be shown that they have been incurred.
    Section 148 of the Judiciary Law authorizes a justice at a regularly adjourned Special Term held at chambers to hear motions which have been duly- adjourned to such term irrespective of whether or not both parties consent to such adjournment.
    Kruse and Robson-, JJ., dissented.
    Appeal by James 0. Sebring from an order of the Supremo Court, made at the Steuben Special Term and entered in the office of the clerk of the county of Yates on the 26th day of June, 1911, adjudging the appellant guilty of contempt of court and imposing upon him a finé.
    
      Charles Marvin [James O. Sebring, in person], for the appellant.
    
      M. A. Leary, for .the respondent.
   Spring, J.:

At the outset and before presenting the facts contained in. the-record, and in order the better to comprehend their application, I will state the questions of fact involved and of what Sebring is adjudged guilty of contempt. . . 1

There were two quéstions of fact litigated before Justice Sutherland. First. Whether Sebring knew of the stipulation given by G-ridley, the attorney for the defendant, about the fifteenth day of February of the present year. Second. Whether he violated the direction of Justice Clark made February eighteenth of the present year to notify Hr. Leary, the attorney for the plaintiff, of the adjournment of the proceeding then pending to February twenty-fifth. The judge at Special Term has acquitted Sebring of any knowledge of the stipulation referred to on the ground that the evidence was insufficient to sustain a finding that he possessed such knowledge, so that charge is now eliminated. He, however, finds him guilty of contempt in that he failed to obey the • direction of Justice Clark to inform. Leary of the adjournment referred to, and that he obtained the order on February twenty-fifth in willful violation of his promise to notify Leary of the postponement and without informing Justice Clark of such omission.

The order, among other determinations, adjudges: “That it was the duty of said Sebring to notify said Leary in accordance with the direction of the court and his promise; and when he had failed to give said notice it was his duty as an attorney and counsel of this court to inform the court of that failure; and his application for the order and obtaining the same without notifying the court that he had failed to carry out his promise was calculated to and did; deceive the court, and was a wilful violation of the duty of Sebring as an officer of this court and as an attorney and counselor thereof.” Later on the order proceeds: “ And it is further ordered and adjudged, that the said order of February 25, 1911, was obtained by the said James 0. Sebring through a wilful and deliberate violation of duty on his part in his capacity as an attorney and officer of the Court. And it is further ordered arid adjudged that by reason of all the foregoing facts and conclusions, James 0. Sebring is guilty of a civil contempt of Court for fraud and imposition upon the Court, and for a wilful neglect and violation of his duty as attorney and-counsel of this Cburt.”

And Sebring is fined the amount of the fine imposed upon the defendant when he was imprisoned, with interest from the date of the incarceration; and the sheriff is further directed to commit him to the county jail to be confined until the fine is paid, or until he is otherwise discharged according to law.

On April 12, 1910, a judgment was recovered in this action against the defendant for $1,000. An execution was issued and returned wholly unsatisfied, and proceedings supplementary to execution were instituted, the order containing the usual clause prohibiting the defendant from transferring his property, etc. An order was granted by the county judge of Tates county adjudging the defendant guilty of coritempt of court in violating the injunction order, in that he had paid some debts and disposed of some of his property in disobedience to the injunction order mentioned, and directed that he be committed to the Yates county jail until the fine of $1,100 be paid, and which was the amount of the judgment, with $100 costs, with which he was charged. The defendant was imprisoned in the jail on the 10th of June, 1910. The order of the county judge was affirmed by this court (Matter of Snow v. Shreffler, 140 App. Div. 915).

Three applications for the discharge of the defendant were made; two at Special Term, and one before the county judge of Yates county, each of which was denied, the last one January 7, 1911, by the Special Term. On the thirteenth of February of the present year an order to show cause was granted why the defendant should not be discharged, returnable February eighteenth at the Special Term at Bath, in the county of Steuben. One of the grounds for the renewal of this motion was that more than six months had elapsed since the imprisonment of the defendant, which may be a tenable ground. (See Judiciary Law [Consol. Laws, chap. 30 ; Laws of 1909, chap. 35], § 774.)

Abraham G-ridley, of Penn Yan, was the attorney for the defendant in all these proceedings, but Mr. Sebring, of Corning, was the counsel and had actual charge of them, arguing each motion. On the fifteenth of February, Mr. Leary, who was the attorney for the plaintiff and who had opposed successfully the preceding applications for a discharge of. the defendant, applied to Mr. G-ridley at Penn Yan for a postponement for two weeks of the hearing to be had in pursuance of the order to show cause on the ground that his wife was very ill, requiring his constant personal attention. Mr. G-ridley was somewhat reluctant to grant this motion. Mrs. Shreffler, who lived in Penn Yan, was very insistent that there should be no delay in this proceeding. Her husband was in jail; they had a son who was in the high school and, naturally, she felt very acutely the fact that her husband had been so long imprisoned. Gridley, therefore, stated to Mr. Leary that he did not wish to grant the application without conferring with Mr. Sebring. Mr. Leary left the office, of Gridley and the latter communicated with Mr. Sebring by telephone, and Mr. Sebring stated that he would consent to a postponement of one week, but no longer, to which Mr. Gridley assented. Mr. Leary returned in the afternoon and claimed he had a right to this stipulation for the adjournment, and Mr. Gridley very reluctantly signed a stipulation postponing the hearing of the motion until March fourth at Coming and without prejudice.

Mr. Sebring testified that he knew nothing of this stipulation; that he heard nothing further from Mr. Gridley after their-conversation over the telephone and that he assumed if any adjournment whatever was granted it would be only for one week, as he had explicitly stated to Mr. Gridley. Mr. Gridley makes two or three affidavits and testified on this subject, but in the final analysis his testimony is that he is positive that he wrote a letter to Mr. Sebring advising him of the stipulation which he had given, but he is not positive that he ever mailed it. Another letter which he had written to Mr. . Sebring he found on his desk unmailed, arid the evidence is that he was often negligent and. forgetful, and that he owned a farm outside of the village which required his attention; and he was further distressed by the sickness oí a daughter. His testimony and his letters are very unsatisfactory.

Sebring testified that on the eighteenth of March, after the denial of the application for the discharge of the defendant, he called Gridley on the phone, informing him that Leary had claimed at the Special Term that-Gridley had signed a stipulation postponing the hearing for-two weeks, and Gridley corroborates this testimony. Two days later, in a letter to Sebring, Gridley writes: “How did I advise you of the terms of .that stipulation % I have no memorandum of it if I did. You know whether I talked such an agreement over the phone, or if I wrote you to that effect.” And referring to his uncertain opinion that he had written to Sebring, adds, “ but that is- only a hazy suggestion in my "own memory. I don’t know.”

Upon this, with other evidence, Justice Sutherland was convinced that Mr. Sebring did not know of the stipulation mentioned. He makes no specific finding upon the subject, but the order in its recitals of the reasons for the imposition of the fine does riot include knowledge of this stipulation or a • violation-of it; and. in his opinion, as already suggested, he concludes that the evidence would not warrant a finding of knowledge on the part of the appellant.

On the eighteenth of February Hr. Sebring appeared before Justice Clark at Special Term in pursuance of the order to. show cause and stated in substance that Mr. Leary had illness in his family and that the hearing should be adjourned for one week at Wayland. The direction, which is the foundation of this order adjudging Mr. Sebring guilty of contempt, was made at this time by Justice Clark, and, in order that we may understand precisely what the justice had in mind, I will quote from his affidavit on this proceeding: “The said Sebring stated that he had understood that the plaintiff’s attorney, Mr. Leary, of Penn Tan, N. Y., would not be present that day owing to some illness in his family, and that he, Sebring, did not want to take any advantage of Mr. Leary’s absence, and, therefore, asked the court .to adjourn said motion to the court’s chambers at Wayland, Steuben county, N.'1Y., one week — to the 25th day of February, 1911. That deponent thereupon, in open court, stated to Mr. Sebring that the Wayland Special Term was not a regularly appointed Special Term, but merely an adjourned Special Term, and that if the matter was adjourned he, Sebring, must notify Mr. Leary of said adjournment, he not being present at Bath to consent to it, and said Sebring, in open court, agreed to notify Mr. Leary of said adjournment.”

It will be observed, therefore, that the reason for the direction to notify Mr, Leary was that the Special Term at Way-land was an adjourned term,. and the justice presiding had some doubt as to the power of the court at that term to hear the application on the order to show cause, unless there was a voluntary appearance or consent for the hearing at that time by both parties. It seems that the term at Wayland was a regular adjourned term held at the chambers of the justice presiding. ■ As is well said by Justice Sutherland in his opinion, section 148 of the Judiciary Law gives ample authority for the hearing at the adjourned term at the chambers in Way-land. Sebring did not notify Mr. Leary directly of this adjournment, and it is for his failure to do this that he has been adjudged guilty of a willful violation of the direction of Justice Clark. ■ One of - his excuses is that he notified Mr. Gridley, although his evidence is not very explicit on that subject. He testified as follows: “My recollection is that I immediately, within a day or two thereafter, talked with Mr. Gridley over the telephone, and told him of the fact that I had appeared at Bath and had the motion postponed. I have been giving the matter a great deal of thought since' this came up. I am not clear, and I wish to be fair to Mr. Gridley, as well as everybody else, in this matter. I am not clear that I told Mr. Gridley the date to which it was adjourned. Q. Did you tell Mr. Gridley to inform Mr. Leary of the fact of the postponement ? A. I am very positive. I did.” Gridley, in effect, finally denies that he received .any information from Mr. Sebring of this adjournment.

In construing the effect of this direction and in justification of Sebring’s conduct, we must bear in mind that he believed that if Gridley had consented to a postponement of the hearing it was only for one week, so if that were true Mr. Leary knew that the hearing would be had in the week following. In any event, if he had no knowledge of the stipulation, as the court below in effect has found, and was relying upon his interview with Gridley, this technical violation of the direction of Justice Clark does not seem to me to be sufficient to authorize so drastic an order as was granted against him in this case.

On the twenty-fifth of February, Sebring had prepared an order discharging the defendant on failure of the plaintiff to appear and started for Wayland with the papers and for the purpose of presenting his application. As he entered the car he found a young lawyer from Corning who was also going to Wayland to court, and Mr.-Sebring asked him to hand these papers to Justice Clark and obtain the order. The young lawyer testified that Sebring told him that probably no one would appear in opposition to this motion. The essence of Sebring’s testimony is that he did not expect the motion would be argued, as he knew that Mr. Leary’s wife was ill, but he expected some one would apply on his behalf for an adjournment, which he was satisfied would be granted; but he took the precaution to prepare the order in the form which I have stated, so that it might be granted in case there was no appearance. The order was granted by Justice Clark, and he wrote Mr. Sebring a letter returning it with the order by the young lawyer to be delivered to Mr: Sebring, which was done.

Much is made of this letter, which calls attention, first, to the fact that the notice of motion should have been served eight days before it was returnable. Justice Clark is in error about this, because Mr. Gridley, the attorney who served the motion papers, or caused them to be served, lived in the same village with Mr. Leary, so that the service was seasonable. (See Gen. Bules Pr., rule 37; Code Civ. Proc. § 780.) Justice Clark, evidently, was of the impression that Sebring was the attorney of record, as his name appeared on the papers as counsel. Justice Clark again refers to his power to grant an order based on a contested motion at his chambers at Wayland. Now, there is nothing in this letter which calls attention to the question of notice to Mr. Leary, so, it seems to me, undue importance has been assigned to this communication in view of the gravity of the charge which has been sustained against Mr. Sebring.

Mr. Sebring mailed the order to Mrs. Shreffler,. the wife of the defendant, and by her it was given to the sheriff, and her husband was promptly released. Mr. Sebring is criticised, and properly, for sending this order to the wife of the defendant and not sending a copy to Mr. Leary or Mr. Gridley. He testified, however, that Mrs. Shreffler had been insistent that ah orders to be served in the action or proceeding should be sent to her, because, as she claimed, her attorney had been careless, and it seems that previous papers had been served by her, and on that account he mailed this order to her.

There are one or two incidental matters which shed a sidelight upon the history of this proceeding. When the matter was adjourned on the eighteenth of February for one week it was noted in the newspapers. The Bochester Democrat and Chronicle has the largest circulation in Penn Yan of any daily paper. In its issue of February twentieth it announced in flaring head lines the hearing of this matter on the eighteenth and stated in its account of the proceeding that the matter would be reargued at Wayland on the following Saturday. The plaintiff’s husband is a regular subscriber for this paper, receiving it about nine o’clock in the morning of the day of its issue, and both she and her husband testified that they read the statement in the Democrat and Chronicle, although they claim they did not advise Mr. Leary of what they had read, though they saw him frequently. There is a local paper in Penn Yan, and in its issue of February twenty-second it published, under the head of “Shreffler Case Again,” that the proceeding was held open for a week. Mr. Leary was asked as to his knowledge of this item in the Democrat and Chronicle and testified as follows: I do not recall it. There might have been, but I do not remember it. Q. Is that as strong as you will put it ? A. Yes,- sir. I would not pay any attention to it if 1 saw it.. I will tell you that, if it will do you any good. Q. If your attention was called to it, you would not pay any attention to it ? A. No, sir. Q. To see whether a mistake had occurred or not ? A. No, sir.”

Mr. Leary returned from the hospital at Rochester, where he had taken his wife, on the twenty-seventh of February, and noticed an item in the Democrat and Chronicle that Shreffler had been discharged. After his discharge on the twenty-fifth day of February the defendant remained in the village'of Penn Yan until the nineteenth day of March following. He was on the street, apparently not attempting to conceal himself, and Mr. Leary knew of his presence and saw blm from day to day, and during that period he did not make any attempt to get away, so far as the record shows. Mr. Leary, of course, was angry when he learned that the defendant had been discharged and that his stipulation with Mr. G-ridley, and upon which he had a right to rely, had been disregarded and that _ the application had been made in spite of it. The Special Term of March fourth, which would be the adjourned day in pursuance of the stipulation, was adjourned until the eighteenth of March. On that day Mr. Leary appeared and showed to Justice Clark the stipulation he had made with Mr. Gridley, and advised the justice that Mr. Sebring knew of the ' stipulation when he obtained the order of the twenty-fifth of February. Thereupon Justice Clark, without any notice, granted an order for. the rearrest of the defendant and also for the denial of the motion for his discharge. At the same time he granted an order directing that Mr, Gridley be examined before a referee, that he named in the order, concerning the stipulation. Very naturally Justice Glare'was quite indignant and believed that he had been tricked or imposed upon by Mr. Sebring, and his position would be invulnerable if, as he supposed, Mr. Sebring had knowledge of the stipulation which had been made by Mr. Gridley, the attorney in the action, postponing the hearing of the application for two weeks. The eighteenth of March was on Saturday and Mr. Leary did not reach Penn Yan until after seven o’clock that evening and the clerk’s office was closed; so that his order could not be entered and the commitment for the rearrest of the defendant issued to the sheriff until the following’ Monday. ’On Sunday the defendant left Penn Yan and has not been seen in that village since. He went to Corning, called up Mr. Sebring, as the latter gentleman testified, and "Mr. Sebring says that he told him to go back to Penn Yan and fight the matter out. Instead of doing that he evidently left the State.

If Mr. Sebring was perpetrating a fraud upon the court in obtaining the order on the twenty-fifth day of February discharging the defendant from imprisonment, it would seem on its face to be a repaarkably foolish experiment in view of what occurred and of the publicity given to his conduct. The two prior applications to discharge the defendant attracted much public- attention and the fraud of Sebring would be readily discovered and the rearrest of the defendant would follow. As already noted, the defendant apparently had received no word from Mr. Sebring that he should get without the jurisdiction of the courts of the State of New York. Mr. Leary at any time, as'he did eventually, could have obtained an order upon his stipulation for the rearrest of the defendant and without any notice. It would seem, with all due deference to Mr. Leary, who is an able lawyer and evidently of high standing, that his bitterness toward Mr. Sebring led him astray somewhat. While he technically had a right to rely upon this stipulation made by Mr. Gridley, when he learned that the defendant had been discharged and knew that it had been done in pursuance of an order of the court at Special Term, it seems to me he might have assumed that.the order had been granted through an honest mistake and he might in some way have communicated with Mr. Sebring. His own testimony on that subject is in effect that he preferred to proceed against Sebring than .against Skreffler, who was irresponsible.

Mr. Sebring may.be a dishonest man, but, before he is convicted of this grave charge, the evidence should be clear and convincing establishing his guilt. Section 273 of the Penal Law, subdivision 1, makes him guilty of a misdemeanor if the charge is true; and, although the fine is imposed for. a civil contempt in pursuance of section 14 of the Code of Civil Procedure, as revised in section 753 of the Judiciary Law, yet it is founded upon his fraud and willful misconduct;' and the logical result of the affirmance of the order may be his disbarment and possibly his imprisonment. The evidence should establish his guilt with reasonable certainty at least. (Ketchum v. Edwards, 153 N. Y. 534; Johnson V. Austin, 76 App. Div. 312; Matter of Wegman’s Sons, 40 id. 632.)

The rule is especially applicable requiring proof almost beyond a reasonable doubt' in order to justify thé granting of an order of this kind, because the person charged is convicted and imprisoned without a jury trial.

It seems to me that the pith of the charge has been removed when the conclusion is reached that Sebring did not know of' the stipulation which had been made, and, in fact, according to his testimony, and there is nothing to contradict it, he was not aware of it until after the order of March eighteenth rearresting the defendant and directing Gridleyto appear before the referee. If he did not know of that stipulation he certainly had a right to assume that Mr. Leary knew that the proceeding was to be adjourned for one week, for that is what he directed Gridley to do, and he had heard nothing to the contrary. While the reason for a direction which a judge makes' may not justify its violation, although the reason is not based on substantial grounds, yet it would' hardly seem that a lawyer should be punished for contempt and ordered to be imprisoned where the violation of the direction is merely technical. That is, Justice Cla:rk wanted Leary to be notified because he was apprehensive that he did not possess the authority to grant the order asked for at his adjourned term unless Leary should appear or consent to the application being heard at that time. This reason does not seem to be well founded, and Sebring was of that opinion. Assuming, as we must, that he did not notify Gridley at all or comply with the order in any way, it still ought not to be a very grave infraction of this direction if he had a right to rely on his own instructions to Gridley to have the proceeding postponed for one week," and believed honestly that the direction had been complied with. There was no secrecy either in the application for the postponement for one week .or in the asking for, or the granting of, the order on February twenty-fifth. ' The proceedings were in open court in the usual public manner, with no endeavor to conceal from those present precisely what was occurring.

Again, I think the amount of the fine imposed is unduly excessive. The record shows that the defendant was insolvent, and that a prehminary adjudication in bankruptcy proceedings had been made by the referee in bankruptcy in August preceding. He had already been incarcerated "eight months, and if full effect is given to section 774 of the Jiidiciary Law already adverted to, he was entitled as matter of right to be discharged. (See Hommel v. Buttling, 46 App. Div. 206.) Apparently there was no prospect of collecting the plaintiff’s judgment from the defendant, and yet the court below has assumed, without any proof whatever to sustain the assumption, that'the damage to the plaintiff by the discharge of the defendant in pursuance of the order of Justice Clark on the twenty-fifth of February was the amount of the fine imposed upon the defendant, to wit, the amount of the judgment and $100 costs included in the order against Shreffler. There is no evidence to sustain any such quantum of damages. If he had no property, the plaintiff was remediless, and the defendant, a man of family, was bound to be discharged in any event in a short time.

In Moffat v. Herman (116 N. Y. 131), where the amount of the fine imposed was the amount of “the judgment and costs, the court (at p. 134) thus laid down the rule to be observed: “It will be observed that the fine imposed was far in excess of the sum which the court had power to inflict in the absence of proof that the plaintiff had sustained damage in such amount, because of the act of defendant adjudged to be a contempt of court. It is well settled that under this section of the Code the amount of the fine to be imposed for the' purpose of indemnifying the person aggrieved must be based upon proof of the ' damage actually sustained.”

The authorities are abundant that proof must be given of the damages which the injured party has suffered by the willful violation of the order or judgment which constitutes the'offense before a fine can be. imposed which is to reimburse such party for Ms loss. (Sudlow v. Knox, 7 Abb. Pr. [N. S.] 411, 420; Dejonge v. Brenneman, 23 Hun, 332; Simmonds v. Simmonds, 6 Wkly. Dig. 263; Socialistic Co-Operative Pub. Assn. v. Kuhn, 164 N. Y. 473; Burnham v. Denike, 53 App. Div. 407; Fall Brook Coal Co. v. Hecksher, 42 Hun, 534.)

The rule prevails for the reason that the amount of the fine is imposed in order to indemnify the injured party for the loss he has met with. ' The amount of that loss, as was said by the Oourt-of Appeals in Sudlow v. Knox {supra, at p. 421), “ must be ascertained by the like evidence, to which are to be applied the same rules of law as upon the trial of an action brought for an injury. The amount is no more discretionary in proceedings under the statute as for contempt, to- procure redress, than in an action brought for that purpose.”

In this record there is no proof that the plaintiff could have collected the judgment against the defendant. On the other-hand, it appears affirmatively that he had no property, and could not further be restrained of his liberty. Even the imposition of costs cannot be made without proof that they have been incurred. (People ex rel. Surety Co. v. Anthony, 7 App. Div. 132; affd., 151 N. Y. 620.)

WMle the order to show cause, which is the foundation of this proceeding, was directed agamst .Gridley, as well as Sebrmg, he was discharged by Justice Sutherland upon the suggestion of Mr. Leary that he believed there was no Mtentional. wrongdoing by Gridley. Gridley, evidently not-a resolute man. may - have been overborne by two stronger men — Leary and Sebring. His testimony and affidavits are unsatisfactory and inconclusive. The significant thing is, however, that in none of his letters to Sebring, in which he goes over the granting of the orders in this action, does he make any allusion to the stipulation until in the one of March twentieth, referred to.

It may be that Sebring perpetrated a fraud upon Justice Clark. If so, of course he should be punished. The order is a very important one in that it involves the integrity of a lawyer, and whatever may be the charges or rumors against him, we ought to be careful before he is convicted of an offense which is defined to be a crime, as he has been by this order.

The order should be reversed.

All concurred^ except Kruse and Robson, JJ., who dissented.

Order reversed, with ten dollars costs and disbursements, and motion denied.  