
    Thomas M. King, Resp’t, v. Reon Barnes, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed May 3, 1889.)
    
    1. Contempt—In what it consists—Code Civil Procedure, § 14.
    The defendant was punished by fine and imprisonment for contempt. His offense consisted in advising and procuring the disobedience of the officers of the Staten Island Terminal Company to a final judgment rendered against them and him, which required the formal transfer of stock upon the books of the company, and to two orders fixing a time and place for such transfer. He did this actively and intentionally, through liis control over the officers of the company; Held, that his conduct was such a direct interference with the action and its ultimate proceedings in aid of the judgment as in the end impeded and impaired the remedy of the plaintiffs, and is within the provisions of section 14, Code Civil Procedure.
    2, Same—When punished by imprisonment—Code Civ. Pro., § 2285.
    Where the cpntempt consists of an affirmative act of resistance to the process of the court, an active effort to defeat its orders and make its judgment nugatory, “an unlawful interference” with an action or proceedings in the court, it is within the provisions of section 2285, Code Civil Procedure, and may be punished by imprisonment not to exceed six months.
    
      W. B. Hornblower, for app’lt; W. W. McFarland, for resp’t.
    
      
       Affirming 15 N. Y. State Rep., 54.
    
   Finch, J.

The defendant, Barnes, appeals from an order which punishes him by fine and imprisonment for contempt. His offense consisted in advising and procuring the disobedience of the officers of the Staten Island Terminal Company to a final judgment rendered against theni and him, which required the formal transfer of'stock upon the books of the company, and to two orders granted upon the foot of that judgment, each of which fixed a time and place for such transfer, and required it to .be made. The offense charged was certainly not a criminal contempt, and' it is now insisted that it was not a civil contempt, because neither described in the specific definitions of section 14 of the Code, nor in the final provision of that section which preserves the common law right in cases not specifically enumerated. I think the case is covered by the last clause of subdivision 4 of the section referred to. That subdivision specifies as constituting a contempt the act of a person who falsely assumes to be an attorney or officer of the court, and acts as such; who rescues any person or property in its custody; who prevents any party or witness from attending or testifying in any action or special proceeding; or who is guilty of any other unlawful _ interference with the proceedings therein. The subdivision specifies certain acts of interference with the due and orderly progress of an action or proceeding to its final and ultimate close, and then adds generally a provision which covers any other interference with it. ■ So that the act of any person who interferes with the process or control or action of the court in a pending litigation, unlawfully and without authority, is guilty of a civil contempt, if his act defeats, impairs, impedes or prejudices the right or remedy of a party to such action or proceeding. The action against the officers of the company remained pending through the permission to apply for further relief upon the foot of the judgment until its purposes were fully accomplished. Barnes interfered to prevent obedience to the judgment, and to defy the orders of the court. He did this actively and intentionally, through his control, over the officers who were put in position to do his bidding, and were always ready to obey his commands. The evidence warranted a conclusion that he caused and aided their disobedience, paying their fines when payment could not be escaped, and supporting them out of the jurisdiction when the fire of the courts became too hot for safety, or their orders could be thwarted by that means. His conduct, therefore, was a direct interference with the action and its ultimate proceedings in aid of the judgment; and it was an interference which for a time defeated, and which in the end impeded and impaired the remedy of the plaintiffs, and was planned and intended to effect that precise result. I think it was clearly within the provisions of the Code defining a civil contempt.

It is next argued that the punishment of six months imprisonment was without authority, and exceeded the jurisdiction of the court. When the proceeding against Barnes was begun, the stock had not been transferred, and the officers of the company were in contempt. Before the final order against him was made, the officers of the company had grown sufficiently fearful of the possible consequences of their contumacy to yield obedience to the judgment and orders, and by so doing, escaped imprisonment. Because they escaped it, Barnes thinks he should. Because he could not keep them longer in contempt, he claims to be relieved from the consequences of his own interference Because they had purged their contempt, he thinks it should be taken as purging also his, or at least reducing its gravity to the penalty of a mere fine. The argument in his behalf is plausible, but unsound. It is true, as we have elsewhere said, that the main line of distinction between criminal and civil contempts is that the one is an offense against public justice the penalty for which is essentially punitive, while the other is an invasion of private right, the penalty for which is redress or compensation to the suitor. But we also pointed out that this distinction, while marked and obvious, was not complete" and perfect, since behind criminal contempts often stood some trace of private rights, and in civil contempts was occasionally to be found the element of punishment merely as distinguished from the bare enforcement of a remedy; and we cited the very provision under which in this case Barnes was sentenced to imprisonment as an illustration of the latter peculiarity. People ex rel. Munsell v. The Court of Oyer and Terminer, 101 N. Y., 245. That section of the code (section 2285), provides that “ where the misconduct proved, consists of an omission to perform an act or duty which it is yet in the power of the offender to perform, he shall be imprisoned only until he has performed it and paid the fine imposed.” This provision manifestly refers to a case in which the court has ordered an individual to perform some act or duty to the performance of which some suitor has a right, and which is essential to his remedy.

That was not the situation of Barnes. He was not directed to perform any act or duty at all, and the act commanded was one which he could not perform, because he was not president or treasurer of the company. The provision cited therefore can have no reference to him. The section proceeds to enact that “in every other case” the penalty shall be a fine of not more than $250, and imprisonment not to exceed six months. That is the provision which covered the contempt of Barnes. It was not an omission to perform what the court had enjoined upon him and which it was in 'his power to do, but it was an affirmative act of resistance to the process of the court, an active effort to defeat its orders and make its judgment nugatory, “an unlawful interference” with an action or proceedings in the court. As such, it was a civil contempt, and, as such, was visited with the appropriate punishment.

It is further objected that the court had no power in the contempt proceeding to order the examination of witnesses. Whether that be so or not, there is no trace of any objection or protest on behalf of Barnes, but on the contrary, he cross-examined the witnesses, and must be held to have assented to the practice adopted. Whether that order is here on a separate appeal or involved in the one under consideration, it must be affirmed as not erroneous under the circumstances.

We are of opinion that the order appealed from was right and should be affirmed, with costs.

All concur.  