
    Matter of the Application of Charles Falkenburg, Respondent, for the Examination of Nathan Frank, Appellant.
    (City Court of New York,
    General Term,
    February, 1897.)
    1. Supplementary proceedings — Examination part of the records of the court.
    An examination taken pursuant to an order in supplementary proceedings, although incomplete, is a part of the records of the court, and should be filed as such.
    2. Contempt Commitment.
    A commitment for contempt committed in the presence of the court which is made in the alternative, directing the payment of a fine or, in default thereof, imprisoninent for a definite term, when no formal order was made and served on defendant, is defective in that it allows the sheriff to exercise his judgment and to take the debtor into custody at once upon a demand of the fine and noncompliance therewith. The-proper practice in such a proceeding is that an order should have .first been made and entered and served upon the judgment debtor, and after he has failed to comply with the condition, and upon proof of such failure, an absolute and final order should be made adjudging, him absolutely guilty of contempt, and a commitment for his punishment issued accordingly.
    
      Appeal from order denying motion to file the examination in supplementary proceedings and to vacate a warrant of arrest and commitment.
    Moritz Frank, for appellant.
    Herman Joseph, for respondent.
   Schuchmam, J.

This is an appeal from an order made at Special Term on January 7, 1897, denying the motion of the judgment debtor to file in court the minutes of the examination of said ¡Nathan and Lina Frank, in the above-entitled proceedings, taken on the 12th and 13th days of February, 1895, and also vacating and setting aside the warrant for the arrest and commitment of said ¡Nathan Frank therein, dated, February 18, 1895.”

The papers used on said motion disclose the facts that the said judgment debtor was directed by an order of .this court, made in proceedings supplementary to execution, to appear in court on February 12, 1895, to make discovery on oath concerning his property; that said ¡Nathan Frank did on said day appear and submit to an examination. . That said proceedings were adjourned to February 13, 1895, for the examination of witnesses, and that pursuant to a subpoena issued by the said court on February 12, 1895, one Lina Frank, the wife of said judgment debtor, was directed to appear and submit to an examination on February 13, 1895, at the hour to which said proceedings supplementary, etc., were adjourned, and then submit to an examination; that pursuant to said subpoena said Lina Frank did appear and submit to an examination, and that while she was thus under examination, her husband, the said judgment debtor* interfered therewith* by directing his wife to correct her answer, telling her that some of her answers were incorrect, or to answer differently, and that finally he directed her not to answer any further questions - and to leave the courtroom.

Such examination having taken place before the court and in the presence of the court, the presiding justice adjudged said judgment debtor guilty of contempt and ordered him to pay- to the clerk of the City Court of Hew York a fine of $200 for the indemnity and for the use of the said Charles Falkenburg, the judgment creditor herein, or in default thereof that the said Hathan Frank aforesaid shall be imprisoned in the common jail of the city and county of Hew York, for the period of thirty days.

This order is recited in the warrant or 'commitment contained in the appeal book, but the appeal book does' not show that an order in writing was ever made and entered in that .respect, nor that such an order was ever served on the judgment debtor.

A commitment was .then issued :by the court to the sheriff óf. Mew York county, as follows: “Mow, Therefore, you are required and commanded, and we do warrant and enjoin you, that you forthwith attach the said Matha-n Frank, the. judgment debtor herein, and commit him to the common jail of the nity and county of Mew. York and detain him there for the term of thirty days as a punishment for the said contempt of the City Court, of Mew • York,., unless he shall pay.(the sum of two.hundred dollars’ fine-imposed on him as aforesaid, and for such arrest and imprisonment and detention this shall be your warrant.”

. The examination of said judgment debtor and of his wife, the, witness, were had pursuant to the order, in supplementary pro- . ceedings, and, although uncompleted,, constitute a part of the record. of the court had in that proceeding,, and should, therefore,, be filed as a record of the court. Code Civ. Fro., § 825; Fiske v. . Twigg, 5 Civ. Fro. 41., .

There is no doubt that, the said, judgment debtor has been guilty of the.-contempt, adjudged of and that the warrant of commitment:. recites all the jurisdictional facts and the causes of the delinquent’s, guilt. . ■ •

But the vice lays in the form of the order or commitment, in that it is made in the alternative, or . rather upon a condition,, .namely, to pay- a fine of $200, or,in default- thereof he be,; imprisoned. ' . ,

Mo formal order having been made'or served upon the judgment debtor requiring him to pay said fine, or in default thereof to be - committed to prison, and the commitment being granted in these- alternative requirements, it was left to the executing officer,. the sheriff, to exercise his judgment and upon a demand of the. judgment debtor of said fine of $200 and noncompliance therewith- he was. allowed at once to take the judgment debtor in. custody and commit him to the' jail.

Such a-practice is not tolerated by our administration of justice.:

The true rule of practice in such a proceeding is that an order should have .first been made and entered and served upon the judgment debtor, and after he had failed to ■ comply ■ with the. condition'.therein-provided for,' upon' due proof of. his failure- to-comply therewith, an absolute and final order should have been made, adjudging him guilty of the contempt absolutely and issue a commitment accordingly for his punishment. First Nat. Bank v. Fitzpatrick, 80 Hun, 77; Brinkley v. Brinkley, 47 H. T. 46; Bice v. Ehele, 55 id. 521.

This not having been done, it follows that the order appealed from must be reversed and the motion granted, with ten ($10) dollars costs, and the costs and disbursements of this appeal.

Van Wyck, Ch. J., concurs.

Order appealed from reversed and motion below granted, with ten ($10) dollars costs, and the costs and disbursements of appeal.  