
    People ex rel. O’Connor v. Sickles, Sheriff.
    
      (Supreme Court, General Term, First Department.
    
    January 16, 1891.)
    Contempt—Punishment—Alternative Provision.
    An order for commitment for contempt of a judgment debtor who had failed to appear for examination in supplementary proceedings directed that he be imprisoned until a fine, costs, etc., be paid, or that, should he appear on a certain day for examination, and pay a fine to plaintiff, and stipulate not to bring any action against him because of the proceedings, he should be discharged. Held that, even if the court had no power to insert such alternative provision in the order and commitment, they were not invalidated thereby, as it caused no harm to the debtor, since he could relieve himself from imprisonment by complying with that portion of the order which the court was authorized to make.
    Appeal from special term,. New York- county.
    
      Habeas corpus and certiorari, on the relaticm of Michael J. O’Connor, to obtain his discharge from a commitment for contempt. The relator appeals from an order dismissing the writs.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      David M, Weuberger, for appellant. J. Edward Weld, for Nathan Gutmann and others, judgment creditors, respondents.
   Van Brunt, P. J.

The relator was adjudged guilty of contempt by the city court of Hew York in proceedings supplementary to execution. An order for commitment was duly made and entered on the 11th of July, 1890, and a warrant was subsequently issued, and the relator arrested thereunder. Writs "of habeas 'corpus and certiorari were obtained, and it was claimed that the arrest under the order of commitment was unlawful and unauthorized, because such order, after having adjudged the defendant guilty of contempt, and that such contempt had impaired, impeded, and prejudiced the rights or remedies of the plaintiff, and after having imposed a fine, and after having provided for the payment of the costs and the sheriff’s fees, and after having ordered that the defendant stand committed to the common jail, there to remain charged upon said contempt until the said fine, together with the. costs, expenses, and sheriff’s fees therein, be fully paid unless he should be sooner discharged by the court, provided that should the defendant appear on a day certain for the purpose of being examined, and pay to the plaintiff a certain sum as a fine for his misconduct, and should he also serve upon the plaintiff’s attorney a stipulation binding himself not to bring any action for damages against the plaintiff or his attorney because of any proceedings had or ordered therein, then said defendant should be deemed purged of said contempt and discharged from the custody of the sheriff, and his bond canceled. The writs were dismissed,"and from the order thereupon entered thid appeal is taken.

The commitment complied with.all the requirements in respect to such proceedings. The appellant was charged and punished for his failure to appear for examination, and the warrant specified the act which he was required to perform, and the sum to be paid to relieve himself from the contempt. .It is urged that neither the order nor the commitment give an opportunity to the relator to be relieved of his contempt by the performance of the act for failure to do which he was committed, but that his liberty was restricted by requiring the stipulation not to sue. It is clear that the court is not bound to allow a party who has willfully disobeyed its order for his examination to purge himself by submitting to examination. The court has a right to adjudicate as to what extent the contumacy of the judgment debtor has impaired, impeded, and prejudiced the rights or remedies of the plaintiff, and to impose a fine therefor, and to direct that the judgment debtor stand committed until he pays the same. This the order and commitment in question did; and, if the court should allow in the commitment the judgment debtor to purge his contempt by doing something else than this, if he complains, he need not take advantage of the privilege, such part of the order being mere surplusage. If the court had no power to insert it there, the commitment was complete without it. The judgment debtor could relieve himself from imprisonment by doing those things which the court required him to do, and which the court was empowered to require him to do; and if he did not please to do that he need not accept the alternative,—hecouldstayin jail. We think, therefore, even if the court had no power to insert the alternative proceeding in the order and commitment, it did the judgment debtor no harm, because he could relieve himself from imprisonment by complying with that portion of the order which the eóurt was empowered to make. The order should be affirmed, with $10 costs and disbursements. All concur.  