
    The People of the State of New York ex rel. Edgar O. Hayes, Relator, v. Maurice J. Pope, Sheriff of the County of Broome, Respondent.
    Supreme Court, Broome County,
    August 2, 1930.
    
      Ellsworth Baker, for the relator.
    
      John D. Lyons and Clayton Washington, for the respondent.
   Rhodes, J.

This matter having been adjourned and continued until this date and the same parties having now appeared, and the record disclosing that heretofore Mr. Justice Tompkins made an order adjudicating that the relator was in contempt and directing that he pay the fine specified within five days, otherwise that he be imprisoned; and it further appearing that after the signing and issuing of said order and at a later date, but before the expiration of five days, the said justice signed the order of commitment herein without other or additional facts having been presented to said justice, it seems to me that said order of commitment was premature and unauthorized. Mr. Justice Tompkins having made an order adjudicating the relator in contempt upon the facts then before him, had no authority later to make a new determination and another and different order without additional facts being submitted to him. (See Matter of Superintendent of Banks, 207 N. Y. 11.) Having provided by the original order adjudicating the relator in contempt that the relator be fined and that he be imprisoned unless he pay said fine within five days, such five da3's were required to elapse and the creditor was then required to apply to the court and upon proper facts procure an order of commitment. Such procedure not having been complied with, the relator is entitled to be discharged from custody. (See Brinkley v. Brinkley, 47 N. Y. 40.)  