Opinion
February, 1916.
George Edwin Joseph, for appellant.
Nicholas Selvaggi, for respondent.
In proceedings supplementary to execution herein a motion was made to punish the judgment debtor for contempt based upon the following grounds.
(1) Failure to appear upon an adjourned day for examination.
(2) For giving false testimony and
(3) For disposing of property in violation of the injunction order.
The order made upon the hearing and appealed from eliminated the two last named grounds and for failing to appear for examination adjudged that such failure "did defeat and impede and prejudice the rights and remedies of the judgment creditor herein to his actual damage of the sum of $77.90" (the amount of the judgment), and fined him that amount together with twenty dollars costs of the proceeding. The material facts are as follows:
The judgment debtor was served with an order on October 4, 1915, requiring him to appear and be examined concerning his property on October 5, 1915. He duly appeared on that day and was examined at considerable length and the examination was adjourned until October sixteenth. On that day he again appeared and was examined for some time. His examination was in Italian and his testimony was translated by the plaintiff's attorney into English and written down by him. At the conclusion of this last examination the debtor was requested to sign some paper, which he swears he supposed was his deposition taken upon the hearing. It appears however that what he did sign was a consent to a further adjournment of the examination until October 23, 1915. He was not represented by an attorney at any of the hearings. Upon Monday the twenty-fifth of October he learned for the first time that a hearing had been fixed for the twenty-third and that he was in default. He immediately communicated with the attorney for the judgment creditor and gave him the reason for his non-appearance at the hearing and offered to appear at any future time for further examination. The creditor's attorney refused to accept any excuse or explanation. These facts were not disputed. The debtor urges upon this appeal that there being no proof of actual loss to the creditor the order was improperly granted. The right to impose a fine as a punishment for a contempt without proof of actual damage in a sum of not exceeding $250 in cases of this kind is well settled. The case of People ex rel. Springs v. Reid, 139 A.D. 551, is decisive of the question. The court in that case, after citing section 773 of the Judiciary Law, said: "The plain language of the statute must be given effect, notwithstanding the fact that many judges in discussing contempts in general or on facts quite different from those now before the court, have expressed the opinion that actual damages must be shown in every case." The court in that case, however, also said: "It must, of course, in all cases, be shown and adjudged that the misconduct or violation of duty was such that it might have defeated, impaired, impeded, or prejudiced a right or remedy of a party or that it either was calculated to, or in fact did so. When this is shown and duly determined by the court there is a basis for a fine to the extent of $250 and the costs and expenses of the special proceeding." In Goldsmiths Silversmiths Co. v. Haas, 76 Misc. 210, the court said: "The fact that no actual loss to the creditor was shown to have been incurred does not prevent the imposition of the fine under section 773 of the Judiciary Law provided it appear and be adjudicated under section 770 that the offense was 'calculated to or actually did defeat, etc.'" From these cases it is clear that while actual damages to the creditor need not be shown nevertheless "it must appear" that the act of the judgment debtor either did, or was calculated to, defeat, impair or impede some right or remedy of the creditor. Examining the undisputed facts in the case at bar, none of the essential elements are shown to authorize the amount of the fine imposed. The debtor had appeared upon two occasions and had been fully examined, and it conclusively appeared that he had no property subject to execution or that could be reached to satisfy the judgment. He was the driver of a market truck earning $8 per week. He had a wife and four children, his sons paying the rent. He had a very imperfect knowledge of the English language and it is not disputed that he believed when he signed the paper, which afterwards proved to be an adjournment of the hearing, that he was signing his deposition taken upon such hearing, and that his examination was closed. Nobody then informed him that he was signing a consent that the examination might be further adjourned nor does it appear that such adjournment was at all necessary. Immediately after ascertaining that his examination had been set for October twenty-third, he voluntarily offered to again appear at any time to suit the convenience of the creditor's attorney. Only one day elapsed, and that day was Sunday, between the date set for the debtor's examination and his offer to again appear. There is an utter absence of even an appearance of an intent to violate any order of the court and there is nothing whatever from which it can even be inferred that his conduct in any way "might have defeated, impeded, or impaired the rights or remedies of the creditors or that his acts were calculated to or did so." Willful disobedience of the lawful mandates of the court should be subjected to just punishment, but accidental and unintentional violations should not be visited by such severe discipline.
Order reversed, with ten dollars costs and disbursements to be set off against the judgment, and the judgment debtor directed to appear for further examination at a future date to be fixed by the justice of the lower court granting the order.
LEHMAN and DELEHANTY, JJ. concur.
Order reversed, with ten dollars costs and disbursements.