Opinion
December 30, 1952.
Appeal from Supreme Court, Sullivan County.
Present — Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ.
Under a final judgment of the court it has been determined that plaintiff has an interest in a driveway between his property and that of defendant and a right to use the driveway and the judgment enjoined defendant from interfering with that right. Upon proof which seems to us adequate plaintiff applied to the court for an order to punish defendant and her daughter, appellant Rittberg, for violation of the injunctive provisions of the judgment and on consideration of that proof on both sides the court issued a memorandum of decision stating that defendant and her daughter were guilty of contempt and fining them. The memorandum stated that defendant was fined $250, with costs, expenses of the proceedings, and actual damages sustained by plaintiff; and the appellant Rittberg was fined $100. The question of the amount of the costs, expenses and damage was sent to a Referee for hearing, and when his report was made it was indicated a further order adjudging defendant be fined the amount so found was to be submitted. The order appealed from, however, did not fine defendant or her daughter anything, and left that subject to be dealt with by the further order. We are unable to review the reasonableness of the fines and other penalties indicated in the memorandum upon review of an order in this form which does not yet impose any penalty, but the appellants have a sufficient interest in the order in respect to the reference to the Referee and in other respects to appeal. In dealing with it we do not determine whether the amounts thus far stated in the memorandum are reasonable or whether the ultimate amounts to be stated will be reasonable, but merely decide that from the facts before the court there is basis for the order now before us. Order unanimously affirmed, with $10 costs.