
    The People of the State of New York ex rel. John Peirce, Respondent, v. Stewart M. Brice, Appellant, Impleaded with Randolph Guggenheimer and Others, Constituting The Municipal Assembly of the City of New York and Others.
    
      Mandamus—punishment for a contempt—when limited to the expense of the proceedings, and imprisonment is improper.
    
    Where a writ of mandamus, compelling a member of the municipal assembly of the city of New York to vote for the issue of certain corporate stock of the city of New York, is obeyed by the member on the same day that he is served with an order to show cause why he should not be punished for contempt in failing to obey the writ, and before any decision or final order is made in the contempt proceeding, the court has no power under section 2285 of the Code of Civil Procedure, in addition to requiring him to pay the expenses of the contempt proceeding, to direct that he be confined in jail for a period of ten days.
    Appeal by the defendant, Stewart M. Brice, from' an order of the Supreme Court, made at the’ New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of April, 1901, adjudging said defendant guilty of a contempt of court, and also from an order entered in said clerk’s office on the 22d day of April, 1901, denying his motion for a reargument of the motion made to adjudge him guilty.
    
      
      John, M. Bowers, for the appellant.
    
      L. Bafiin Kellogg, for the respondent.
   Per Curiam :.

We do not think we are warranted in disturbing any of the conclusions reached by the ■ learned judge at Special Term,, except that relating to defendant’s punishment. In addition to requiring him to pay $473.75’ to cover the expenses, the order directed further that the defendant be confined in the county jail for a period of ten days. This we do not think the court had power to do.

Section 2285 of the Code of Civil Procedure provides: “ 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. In such a. case the order and the warrant of commitment,, if one is issued, must specify the act or duty to be performed and the sum to be paid. In every other case, where special provision is not otherwise made by law, the offender may be imprisoned for a reasonable time, not exceeding six months, and until the fine, if any, is paid ; and the order and the warrant of commitment, if any, must specify the amount of the fine and' the .duration of the imprisonment.”

Here the contempt of the defendant consisted in his failure to obey a writ of mandamus compelling him to vote for the issuance of certain corporate stock of the city of Hew York. The order to show cause why he should not be punished was served on him on August 2, 1899, on which same day he voted for the stock as commanded by the writ. As his contempt thus consisted in an omission to perform an act or duty which was performed before there was a decision or final order in the contempt proceedings, the court was powerless to imprison the defendant. The distinction between contempts which consist of omissions to do acts which, when done, relieve from imprisonment and those affirmative acts of resistance to the orders of the court wherein imprisonment may be imposed on the offender, has been pointed out in King v. Barnes (113 N. Y. 476); Fenlon v. Dempsey (7 N. Y. Supp. 435); King v. Flynn (37 Hun, 330).

The order adjudging the appellant guilty of contempt should accordingly be modified by striking out the provision relating to imprisonment, and, as so modified, affirmed, without costs to either party.

Present —Van Brunt, P. J., O’Brien, Ingraham, McLaughlin and Hatch, JJ.

Order modified as directed in opinion, and, as modified, affirmed, without costs to either party.  