
    Buffalo Loan, Trust and Safe Deposit Company, Plaintiff, v. Medina Gas and Electric Light Company and Holland Trust Company, Defendants. In the Matter of the Application of Cornelius Fitzgerald, Respondent, for an Order Adjudging John F. Moffett, Appellant, in Contempt of Court.
    
      Contempt —amount of fine which may he imposed on a surety on an undertaking on appeal to the Court of Appeals, who swears falsely as to his property.
    
    In order to secure a stay of proceedings, pending an appeal to the Court of Appeals from a judgment foreclosing a mortgage, an undertaking was given by which the sureties jointly and severally undertook that the appellants would pay all costs and damages which might be awarded against them on such appeal not exceeding $500, and also that in the event of the affirmance of the judgment or the dismissal of the appeal the appellants would “pay any. deficiency which may occur on the sale in discharging the sum to pay which the sale is directed, with interests and costs and expenses chargeable against the proceeds of the sale, not exceeding the sum of five thousand dollars.”
    The judgment appealed from was affirmed and the premises were thereafter sold. A deficiency of $6,688.95 arose, for which amount judgment was entered against the mortgagor.
    An action was then brought upon the undertaking which resulted in a judgment against the sureties for §5,121.82 which represented the amount of such deficiency as limited by the condition of the undertaking, together with interest and costs.
    After execution on this judgment had been returned unsatisfied, the assignee of the judgment learned that one of the sureties on the undertaking was insolvent when he. executed such undertaking, and that the statement in the affidavit annexed thereto, in which he swore that he was a freeholder and worth the sum of §10,000 over and above his liabilities, was false.
    He thereupon instituted a proceeding-to punish such surety for contempt, which resulted in an order adjudging such surety guilty of contempt and fining him the sum of $6,000.
    
      Reid, that as the surety had obligated himself to pay any deficiency which might arise upon the sale of the mortgaged premises, not exceeding §5,000, the actual loss sustained by the plaintiff in consequence of the surety’s contempt of court in swearing falsely, was the deficiency arising upon the foreclosure sale, and that the judgment recovered against the sureties furnished a correct basis upon which to determine the amount' of the plaintiff’s loss, and consequently the amount of the fine which might properly be imposed;
    That the fine of §6,000 should be reduced to §5,121.82.
    Williams, J., dissented.
    
      Appeal by John F. Moffett from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Orleans on the 13th day of September, 1901, adjudging him in contempt of court and fining him the sum of $6,000, to be paid to Cornelius Fitzgerald, and directing that, in default of such payment, he be committed by the sheriff of the county of Orleans to the county jail to be detained in close custody until the payment of said fine.
    This action was brought by the plaintiff, as trustee, to foreclose a mortgage upon certain premises located in the village of Medina, Orleans county, which was given to secure the payment of ten negotiable bonds of the Medina Gas and Electric Light Company, of which company the appellant was at one time a large stockholder and subsequently the receiver.
    Issue was joined in the action, and after the trial thereof judgment of foreclosure and sale was rendered in favor of the plaintiff, as such trustee, in and by which judgment it was determined that the amount due upon such bonds was the sum of' $16,532.88.
    An appeal was in due time taken-to the Appellate Division, where the judgment appealed from was modified by deducting from the amount due the sum of $1,293.04, and as thus modified the judgment was in all things affirmed. (12 App. Div. 199.)
    From the latter judgment an appeal was subsequently taken to the Court of Appeals, and in order to procure a stay of proceedings pending such appeal an undertaking, in the usual form, was duly executed by the appellant Moffett and one Hodgkins, in and by which they jointly and severally undertook that the appellants would pay all costs and damages which might be awarded against them on such appeal, not exceeding $500, and also that in the event that the judgment so appealed from should be affirmed or the appeal dismissed, the appellants would “ pay any deficiency which may occur on the sale in discharging the sum to pay which the sale is directed, with interests and costs and expenses chargeable against the proceeds of the sale, not exceeding the sum of five .thousand dollars.”
    Attached to this undertaking was an affidavit executed by Moffett on the 12th day of January, 1899, in and by which he swore that he was a freeholder of the county of Jefferson in this State, and worth the sum. of $10,000 over and above all .debts and liabilities. A similar affidavit was likewise' made by Henry C. Hodgkins, the other surety to the undertaking.
    Thereafter the judgment so appealed from was. affirmed by the Court of Appeals (162 N. Y. 67), and the judgment of that court was made the judgment of this court on the 14th day of March, 1900. Thereupon the premises covered by the mortgage in ques^ tian were sold at public auction, and upon the sale a deficiency of $6,688.95 arose, for which amount judgment was duly entered against the Medina Gas and Electric Light Company, and subsequently an action was brought upon the undertaking, by one Cornelius Fitzgerald, to. whom the same had in the meantime been assigned, and this action resulted in a judgment against Moffett. and. Hodgkins for the sum of $5,121.82, which represented the . amount of such deficiency as limited by the condition of the undertaking, together with interest and costs.
    Thereafter Fitzgerald caused an execution to be issued to the sheriff of Jefferson county against the property of the appellant Moffett, which in due course of time was returned to the clerk of that county wholly unsatisfied. -
    In the meantime Moffett had removed to the State of Massachusetts, and in February, 1901, an action upon such, judgment was brought in that State and a recovery had, whereupon Moffett was examined in the Poor Debtor Session of the Municipal Court: of the city of Boston, which proceeding is virtually the same as that authorized in this State supplemental to execution ; and upon such examination, which was extended and exhaustive, he testified that at the time of executing the Undertaking, he owned no real estate in Jefferson county, and that he had been wholly insolvent since 1898. Upon the evidence thus taken, together with the affidavits appearing in the record, an order was obtained requiring, the appellant to show cause at a Special Term of the Supreme Court why he should not be punished for contempt, and upon the return of that order, and after hearing counsel for the respective parties, the order appealed from was granted.
    B E. Filkins, for the appellant.
    
      Clarence J. Shearn, for the respondent.
   Adams, P. J.:

That the appellant, when he declared under oath that he was a freeholder of the county of Jefferson and worth $10,000, over and •above all his debts and liabilities, committed a deliberate and willful falsehood, is too clearly established to admit of discussion; that such false swearing was committed for the express purpose of deceiving the court and inducing it to adopt a course of procedure which would not otherwise have been adopted, is equally plain; and it having been adjudged by the court at Special Term that this misconduct upon the part of the appellant was of such character as to ■defeat, impair, impede or prejudice a right or remedy of a party to •a civil action or special proceeding, it follows that he has been guilty ■of a civil contempt, which subjects him to punishment and requires •■that he be dealt with as summarily as a proper regard for legal procedure will permit. (Code Civ: Proc. §§ 14, 2266, 2267; Boon v. McGucken, 67 Hun, 251; Matter of Hay Foundry & Iron Works, 22 App. Div. 87; Socialistic Co-op. Pub. Assn. v. Kuhn, 51 id. 583.)

With the preliminary feature of the case thus disposed of, it remains only to determine whether the punishment inflicted by the ■court below is within the rule prescribed by the law of this State.

In passing to a consideration of this question, it is to be noted that it is a. civil and not a criminal contempt of which the. contemner in the present instance has been found guilty, and while in either ■case the court is interested in dealing summarily with those who •defy its authority or change the course of its procedure by any fraudulent device or scheme, yet in a proceeding for a civil contempt the party more immediately concerned is the one who has ¡suffered some injury or loss by reason of such misconduct. It is mainly for his protection and indemnity that the punishment is inflicted, and it was doubtless with this design that the Legislature ■enacted section 2284 of the Code of Civil Procedure, which provides that “If an actual loss or injury has been produced to a party 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 mnst.be imposed upon the offender and collected and paid over to. the- aggrieved party under the direction of the court. * * -Where it is not shown that such an actual loss or injury has been produced 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, and must ,be collected and paid in like manner * *

This provision, therefore, must be our guide in determining the question under consideration.

In view of the undisputed facts of the case it will not, we assume, be seriously contended that the contemner’s misconduct has. not resulted in some actual loss or injury to the plaintiff in the action and to the petitioner, as its assignee. In the most favorable view which can possibly be taken of Moffett’s conduct it must-be admitted that it caused a delay in the sale of the mortgaged premises of more than fourteen months, which circumstance of itself, it is fair to infer, had something to do with the .amount of the deficiency which subsequently arose. There was also the additional expense incidental to the appeal, and which in all probability would not have been incurred but for the- stay of proceedings which the under^ taking in question made possible, so that it is apparent that this is not a case which calls simply for a. fine of’ $250 and costs as provided in -the last clause of the section above quoted. On .the contrary, it necessarily follows, as we think, that with the contempt established, the only fine which could have been legally imposed Was one Which should be sufficient in amount to fully indemnify the aggrieved party for the actual loss or injury sustained by him, or' at least for such portion thereof as was embraced within and covered'"by the condition of the bond.. The Special Term has found that such loss was the amount of the deficiency arising upon the- sale of the- mortgaged premises, and this finding, subject to the modification hereinafter mentioned, meets with our approval.

In proceedings of-this nature it is not always easy to ascertain the actual-loss ’sustained in consequence of the misconduct of a party which amounts to::and has been adjudged to be a contempt of court ; but, like any otheibclaim for damages, it is. .something which must be established ■’ by proof. (Moffat v. Herman, 116 N. Y. 131; Dejonge v. Brenneman, 23 Hun, 332.)

The present case, however, is relieved of the embarrassment ordinarily attending efforts of this nature by the action of the contemner himself, for he not only undertook to pay all costs and damages-which might be awarded against the appellants in the action in which the appeal was taken, but he also in express terms and as a-condition of obtaining a stay of proceedings in the foreclosure suit obligated himself to pay any deficiency which might arise upon the sale of the mortgaged premises, not exceeding $5,000. Manifestly the undertaking in this form was required by the court solely as an indemnity to the plaintiff in the action. Without it no stay of proceedings would have been granted, and when the stay was granted the undertaking became in effect an additional security in the hands of the plaintiff and one which was absolute in its terms and dependent upon nothing for its compensatory quality save the existence of a deficiency and the responsibility of the obligors. Consequently, when it turned out that the sureties had sworn falsely and that their obligations were worthless, it seems quite clear that the actual loss sustained by the plaintiff was the amount the undertaking was supposed to secure, namely, the deficiency arising upon the foreclosure sale, and that nothing less than this would fully indemnify the 'aggrieved party. It is conceded that for so much of that sum as was covered by the undertaking, together with costs, judgment was subsequently obtained against Moffett in an action thereupon, and in our opinion both principle and precedent furnish ample reason for holding that such judgment established a correct basis upon which to determine the amount of the plaintiff’s loss, and consequently the amount of the fine which might be properly imposed. (Matter of Hay Foundry & Iron Works, supra; King v. Flynn, 31 Hun, 329; Matter of Hopper, 9 Misc. Rep. 171; Martin Cantina Co. v. Warshauer, 7 id. 412; Diamond v. Knoepfel, 3 N. Y. St. Repr. 291; Hull v. L'Eplatinier, 5 Daly, 534.)

By some process which is not made entirely clear to us, the court below reached the conclusion that Moffett’s misconduct resulted in a loss or damage to the petitioner of at least $6,000, and it consequently imposed a fine for that amount. We are inclined to think that this was error, but inasmuch as a reduction of the fine may undoubtedly be made in appropriate cases by the appellate court (Clark v. Bininger, 75 N. Y. 344; Dejonge v. Brenneman, supra), ■the error is tine which can be easily corrected by reducing the fine ■io the amount of the recovery in the action upon the bond, viz., t$5,121.82, and the. order should be modified to that extent.

This is not a case in which the court should struggle to relieve The appellant from the difficulty in which he has placed himself. "The contempt with which he stands charged was flagrant in the «extreme, and without any mitigating circumstances. As was said by Ingraham, J., in a somewhat similar case: It is time that parties "who engage in such an attempt as this to deceive the court, and induce it to adopt a course which results in defrauding one whom the court is bound to protect, should be summarily dealt, with, and taught that, if, such a scheme is successful, it involves consequences much more serious than the payment of the amount of which a party is defrauded.” (Matter of Hay Foundry & Iron Works, supra)

This language, is not inappropriate to the case in hand.

Order modified by reducing the amount of the fine imposed to the slim of $5,121.82, and as thus modified affirmed, without costs of this appeal to either party.

McLennan, Spring and Hisoook, JJ., concurred; Williams, J., dissented in an opinion.

Williams, J.

(dissenting) :

. It seems to me that error was committed by the court below in proceeding summarily to adjudge the appellant guilty of contempt, and in not ordering a reference as to the facts, but inasmuch as my brethren are all against me upon this question, and the Court of Appeals would not. review us as to this part of the order, it would be useless for me to. write anything upon this branch of the case. . As to the amount of the fine imposed, however, I am of the opinion that there was no basis in the evidence for fixing any such amount, and inasmuch as this court may be reviewed upon this question, I desire to express my views with reference theréto.

The contempt of which the' appellant was .adjudged guilty con-, tsisted- in his swearing falsely to an affidavit accompanying an undertaking given to procure a stay of proceedings upon a judgment pending an appeal to the Court of Appeals.. The affidavit was in ■effect that he, one of the sureties in the undertaking, was a freejholder and was worth $10,000, whereas in truth he was. not a. freeholder and was insolvent. The judgment appealed from was one affirming in the General Term a judgment directing the foreclosure and sale of mortgaged premises. The General Term judgment was. entered June 24, 1896, the undertaking was given and the stay procured January 13, 1899. Judgment was entered upon affirmance in the Court of Appeals March 14,1900. The undertaking was to the effect that the defendants would pay costs and damages, not to-exceed $500, and any deficiency that might occur on the sale in case of affirmance in the Court of Appeals. There was a deficiency in the sale of $6,688.95, including costs, as finally ascertained, and judgment therefor was entered against the défendant gas company July 10, 1900. An action was commenced against the sureties upon the undertaking and resulted in a judgment against them of $5,121.82? on the 5th day of December, 1900.

The appeal to the Court of Appeals was by both defendants, the gas company and the trust company, and the undertaking was that both defendants would pay the costs and the deficiency. The. undertaking was given as sureties for both defendants at their request and upon their application for the stay. Both defendants were, therefore, principals, and were liable as such to the plaintiff for the costs and deficiency; the parties giving the undertaking became sureties merely.

The gas company was also liable by reason of the deficiency judgment against it.

There was no proof given at the hearing in the court below as to what damages were actually suffered by the plaintiff by reason of the stay of proceedings and sale of the property from January 13, 1899, when the stay commenced, until March. 14, 1900, when it terminated. There was no proof that the deficiency .judgment had not been paid by the defendants, or either of them, or that they were not responsible; that the judgment was not collectible from them or either of them. There was no proof that any attempt had ever been made to collect the deficiency judgment from the defendants or either of them. It was merely made to appear that the judgment against the sureties was not collectible. So far as appears the plaintiff lost nothing because its deficiency judgment was collected or was collectible from the principals in the undertaking.

The amount of the fine was fixed under section 2284, Code of Civil Procedure, which, so far as applicable here, reads as follows:

“If an actual loss or injury has been produced to a party to an action * * * by reason of the misconduct proved against the-' ■offender, * * * 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. The payment and acceptance of such a fine constitute a bar to an action by the aggrieved party, to recover damages for the loss or injury. Where it is not shown that such an actual loss or injury has been produced, 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, and must be collected and paid in like manner.”

The order appealed from which imposed the fine adjudged that the plaintiff’s assignee had been damaged in the sutn of $6,000, and that the fine imposed be paid over to him. The fine was, therefore, fixed under the 1st clause of the section quoted and not under the 2d one. .

It is well settled that in order to justify the imposition of a fine under this clause of the statute, the amount of actual loss or injury must, according to the rules of law which npply in an action for ■such damages, be proved and established, and then the amount of the fine must be sufficient to indemnify the aggrieved party. No ■exemplary damages can be. allowed, and nothing can be allowed

under the 2d .clause of the statute. (Socialistic Co-op. Pub. Assn. v. Kuhn, 164 N. Y. 473; Moffat v. Herman, 116 id. 131; Sudlow v. Knox, 7 Abb. Pr. [N. S.] 411; S. C., 4 Abb. Ct. App. Dec. 326; Clark v. Beninger, 75 N. Y. 344; People ex rel. Surety Co. v. Anthony, 7 App. Div. 132; 151 N. Y. 620; Erie Railmay Co. v. Ramsey, 45 id. 637.)

In Sudlow v. Knox (supra) Grover, J., laid down the rule upon this subject (under the statute prior to [2 B. S. 534, et seg.] but the same as the Code), which has since been uniformly adopted, as follows: “The accused is to be fined such a sum as will ' compensate for the damages sustained by the party from the misconduct. These damages 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 the injury.” The same idea is suggested by the provision of the Code in section 2284. “ The payment and acceptance of such a fine constitute a bar to an action by the aggrieved party, to recover damages for the loss or injury.” If the penalty imposed, paid and received is to be in lieu of the. damages recoverable in an action, and in bar of such an action, then the rule and measure of damages should be the same as in the action. The only theory upon which it could be claimed that the false affidavit produced any loss or injury to the plaintiff was that it resulted in a stay of the sale and consequent loss and injury to the plaintiff, in that there was a less amount finally realized than there would have been if the stay had not been obtained. If the stay had not resulted, no loss or injury would have followed. If the property sold to better advantage after the stay terminated than it would have done if there had been no stay, then no loss or injury resulted.

Suppose the plaintiff or its assignee, instead of instituting this proceeding, had brought an action to recover damages for the loss and injury resulting from the making of this false affidavit, and upon the trial it Bad not been made to appear that a stay was procured by the making of the affidavit, could any recovery have been had, would any damage have been established ? Or, supposing the stay had .been procured, but no proof had been given that a less amount was realized upon the sale, after the stay terminated than would have been realized if there had been no stay, could any recovery have been had, would any damages have been established ? The answer to these questions must be in the negative, and the same suggestions are applicable here. No such proof was given or suggested upon this hearing.

This was not the theory upon which the court proceeded in fixing the amount of the fine. On the contrary, the theory was that the loss or injury to the plaintiff was the whole amount recoverable under the undertaking which, if the affidavit had been true, would have been collectible, but which, being untrue, was lost to the plaintiff or his assignee. The affidavit could not make the undertaking a good collectible one. The appellant was insolvent and wholly irresponsible when the affidavit was made, and the affidavit in no way changed his financial condition. The only result of the affidavit was to procure a stay. And the loss or injury to the plaintiff - or its assignee was such as resulted from the stay and as would hot have heen suffered if there -had been no stay. It seems to me that a mere statement of these propositions settles the ques^ tian, and shows the erroneous theory upon which the amount of the fine was arrived at. In all the cases above cited and in many others hereafter referred to, the amount of -the fine was fixed at such sum as would have been recoverable in an action, and when nothing was so • recoverable no fine was imposed under the 1st clause of the statute, but only the $250 and costs and expenses of the proceeding under the 2d clause of the statute.

In 164 New York, 473, while it was stated that the acts complained of “ did defeat, impair, impede and prejudice the rights and remedies pf the plaintiff,” still the order did not otherwise state the actual loss or injury to the plaintiff, nor any items from which the amount thereof could be computed or inferred, and, therefore, only the $250 was imposed as fine. The contempt complained of there was the’violation of an injunction. In 116 New York, 131, where the contempt complained of was falsely verifying and interposing an answer, the court below found that by reason of .misconduct plaintiff was prevented from collecting his judgment, and fined the defendant the full amount thereof, $1,132.32. The Court of Appeals held that this was not permissible, because, as a matter of fact, the misconduct did not produce such result; that while the verifying and serving of the answer postponed for a few days, the obtaining of a judgment, the defendant was not thereby enabled to-dispose of his property, because when the answer was served he had no property to dispose of; he had already conveyed it away, and that the proof before the court, therefore, utterly failed to establish that damage was sustained in- an amount equal to the sum due upon their judgment, or in any sum whatever, by the alleged misconduct, and only a $250 fine could be imposed. In 75 New York, 344, and 151 New York, 620, the contempts complained of were-the refusal, of receivers -to pay over moneys as directed by the orders of the court. The fines imposed were the amounts of money so directed to be paid over. These were the amounts that could have been recovered if action had been brought instead of instituting the contempt proceedings. ■ .

In 45 New York, 637, the contempt was committed in the violation .of injunctions issued by the court. The court ordered a reference to ascertain plaintiff’s damages, and the referee reported they were $5,325, and this amount was imposed as fine, together with $500 for counsel fees. The damages found by the referee were largely for service of counsel. The General Term, on appeal, reduced the fine to $250, and the Court of Appeals held the papers showed no actual loss or injury beyond the $250.

There have been many cases where the contempt consisted of making false affidavits in justifying as sureties upon bonds to procure the discharge of mechanics’ liens and the liens of judgments and attachments, and in all these cases the fines imposed have been the amounts of the liens discharged upon the strength of the bonds. The liens were entirely lost. The damages recoverable in actions brought for such wrongs would have been the same.

That was the rule stated in Matter of Hay Foundry & Iron Works (22 App. Div. 87), a decision in which I took part and concurred. In Nathans v. Hope (5 Civ. Proc. Rep. 401) the contempt was the same as in our case, the making of a false affidavit in justifying as surety upon an undertaking given to stay proceedings on appeal to the Court of Appeals. The affidavit was untrue in that the surety was wholly insolvent. The judgment in the General Term was $3,139.0.2, with $74.93 costs. The stay was granted April 30, 1878. The affirmance in the Court of Appeals was June 18, 1879, and $111.50 costs were added in that court. An action was then brought against the sureties on the bond and a judgment recovered for $4,082.67 and execution issued and returned wholly unsatisfied. It was proved in that case that when the undertaking was given and the stay procured the defendant in the judgment was solvent and the judgment could thus have been collected,, but during the time the stay was in force the defendant became insolvent and the judgment wholly uncollectible. By reason of the stay plaintiff lost his whole judgment. Upon such evidence the court was authorized to do as it did, impose a fine equal to the full amount of the judgment stayed, which was the same as the judgment recovered against the sureties on the undertaking. That was an- application of the rule as I claim it is. There was proof of the actual loss or injury to the plaintiff.' Suppose, however, there had been no proof that the judgment became valueless during the time of the stay, could the fine have been fixed at the full amount of the judgment ? Clearly not. There could be no presumption that the defendant was solvent and able to pay the judgment when the stay was obtained, and became insolvent during the continuance of the stay, and the mere fact that the undertaking was not collectible did not establish bis loss or injury at the amount of the judgment recovered thereon.

In Burnham v. Denike (53 App. Div. 407; 65 N. Y. Supp. 1028) the contempt consisted in a refusal to comply with an order of the court requiring a purchaser to complete a purchase of property bid, in by him at a referee’s sale under a judgment in partition. The punishment prescribed for the contempt was that he pay the balance of the purchase price and comply with the other directions in the order/

The court (Second Department Appellate Division) held that there was no evidence from which it could be inferred. that the respondent had been damaged to the amount of the unpaid portion of the purchase price; that the amount of the fine imposed for the purpose of indemnifying the person aggrieved must be based upon proof of the damage actually sustained (citing 116 N. Y. 131), and there was no legal evidence to show that the respondent had suffered any damage by reason of the failure of the appellant to complete the purchase of the property; that he had paid ten per cent of the purchase price at the time of the sale, and there was nothing in the record to show that the property had deteriorated in value or that any expense had been incurred that could not be paid out of the amount that had been advanced ; that the terms of sale provided for -resale and that the first purchaser be liable for any deficiency and for costs and expenses of the resale, and if - the property had been resold and had brought more than the price bid on the first sale there would have been no damage, and if it had brought less the measure of damages would have been the difference between the two prices, with costs and expenses of resale, and in the absence ef any evidence the damages could not be adjudicated, a fine imposed or the party imprisoned ; that the fine could only be fixed upon proof of the damages sustained.

I have been able to find no authority in support of the respondent’s theory-of fixing the amount of this fine, excepting the two cited by him. in his points (Diamond v. Khoepfel, 3 N. Y. St. Repr. 291, McAdam, Ch. J., Special Term, N. Y. City Court; Hull v. L'Eplatinier, 5 Daly, 534, Daly, J., N. Y. Common Pleas General Term), and these cases have never been followed so far as I can discover.

They were not well considered, were in conflict with the statute and with all the cases I have examined and should not be followed by this court. The other cases cited in the prevailing opinion, as authority for fixing the damages at the amount of the judgment recovered upon the undertaking, do not hold any such rule as to the measure of damages. The plaintiff did not lose a good undertaking because it never had a good undertaking to lose. It was worthless all the time. I have referred to a sufficient number of authorities to show that the real measure of damages which should govern in fixing the amount of the fine in this case is the loss or injury sustained by the plaintiff or his assignee by reason of the stay of proceedings obtained on the strength of the worthless undertaking, and there is no basis in the evidence for arriving at the amount of such loss or injury. The judgment in General Term was entered June 24, 1896. Yet, for some reason, no attempt was made to sell the property from that time until January 13, 1899, when the stay in question was obtained, a period of two years and six months. The stay continued from January 13, 1899, to March 14, 1900, a period of one year and two months. There is nothing in the record to show that the property deteriorated in value during that fourteen months, or that as large a sum was not realized from the sale, when finally made, as would have been realized if no stay had been obtained. Certainly there is nothing to show, or from which any inference can be drawn, that the loss or injury suffered by the plaintiff or its assignee and occasioned by the stay was $6,000 or anything like that amount.

So far as appears, the deficiency arising from the sale was no larger than it would have been if the stay had not been had and the property had been sold whenever the plaintiff saw fit to have it take place. The sale had been delayed two years and six months before the stay was obtained. How could the court say, from anything in the record, that a stay for an additional fourteen months occasioned loss or injury to the plaintiff or its assignee of $6,000, or $5,121.82? . There is no basis in the evidence for any such conclusion. And as already stated, so far as appears, the plaintiff suffered no damage because its deficiency judgment was collected or collectible from the principals in the undertaking.

For the reasons hereinbefore suggested, I think the order appealed from should be reversed and a reference, ordered as to the loss or injury, if any, suffered by the plaintiff by reason of the contempt complained of, and, in case a reference is to be ordered at all, the appellant should be allowed to give such evidence as he desires as to the contempt himself, the respondent also having the same privilege.

Order modified by reducing the amount of fine imposed to the sum of $5,121.82, and as thus modified affirmed, without - costs of this appeal to either party.  