Opinion
March, 1899.
Frank J. McBarron, for appellant.
Blumenstiel Hirsch (Edwin Blumenstiel, of counsel), for respondents.
The order adjudging the debtor herein guilty of contempt must be affirmed. The only reason offered by him in justification of his contempt was that at the time of the service upon him of the order for his examination as a judgment debtor, he was a nonresident.
In support of his contention he submitted his own affidavit and the affidavits of several others in which the following conclusion is set forth:
"He is not now and has not been for a period of three years or more a resident of the city and county of New York, but resides without said city and county."
The Special Term justice was right in disregarding this conclusion; it alleged no facts which would justify said justice in sustaining the debtor's conclusion, and it was for the court to decide whether the debtor was a nonresident based upon facts presented by the debtor. He had no right to assume this judicial function.
The order appealed from is affirmed, with costs, with leave, however, to the debtor to appear and submit to examination and upon payment of costs herein, also the costs of appeal from the order of December 9, 1898; and upon complying with these terms the fine of $250 will be remitted.
Present: FITZSIMONS, Ch. J., CONLAN and SCHUCHMAN, JJ.
Order affirmed, with costs, with leave to debtor to appear and submit to examination upon payment of costs and costs of appeal. Upon complying with these terms fine will be remitted.