Opinion
November 22, 1929.
Appeal from Supreme Court of Kings County.
Max H. Newman, for the appellant.
Joseph Danziger [ Leon Starr with him on the brief], for the respondent.
This is an appeal from an order adjudging the appellant to be guilty of contempt of court because of an alleged violation of an injunctive provision contained in an order in supplementary proceedings. The application for the order is based upon an affidavit of a lawyer associated with the attorney for the plaintiff, who claims to have been familiar with all the facts and proceedings had herein. It does not appear that said affiant was authorized either by the plaintiff or the plaintiff's attorney to make said application. Such application, while entitled in the action, was not a proceeding in the action. An affidavit upon which an order in supplementary proceedings is granted must be made by the judgment creditor himself, or, if made by another, his authority to act for the judgment creditor must appear upon its face, except where the affidavit is made by his attorney at law, in which case authority is presumed. ( Title Guarantee Trust Co. v. Brown, 136 App. Div. 843.) A proceeding instituted for the purpose of punishing a party for contempt of court cannot be instituted without authority of the party aggrieved. Such authority does not appear in the record before us. Neither do the papers show what sum of money, if any, was transferred or disposed of in violation of the injunctive order in question as a basis of a fine in the amount specified in the order. The order was made in the action which had terminated on entry of judgment. ( Voisin v. Commercial Mut. Ins. Co., 123 N.Y. 120.) An order to punish for such a contempt should be made in the proceedings supplementary to execution.
The order punishing the appellant for contempt should be reversed upon the law, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
LAZANSKY, P.J., KAPPER, HAGARTY, SEEGER and CARSWELL, JJ., concur.
Order punishing defendant Leizerkowitz for contempt reversed upon the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.