183 N.E. 428 | NY | 1932
The plaintiffs, by the allegations of their complaint, have sought to state a cause of action against the defendant-appellant, the Sheriff of Kings county. A Sheriff who suffers a person, committed to jail for contempt of court, to go at large, "until he is discharged by due course of law," is liable to "the party aggrieved" for his damages sustained thereby. "If the commitment was for the non-payment of a sum of money, the amount thereof, with interest, is the measure of damages." (Correction Law [Cons. Laws, ch. 43], § 514.) Admittedly, the plaintiffs have stated a cause of action, and were entitled to the summary judgment accorded them, provided the defendant discharged the prisoner named in the complaint before the end of the term for which he was incarcerated.
Joseph S. Alberti was one of the executors of the estate *292 of his mother. In proceedings for a judicial settlement of the accounts of the executors, duly had before the Surrogate of Kings county, the Surrogate determined that the executors had received divers sums of money, and directed that from the moneys so received they make payments to various persons, of sums of money, aggregating $16,979.10, which sum included the sum of $6,454.70 directed to be paid to these plaintiffs. The executors defaulted in payment, and thereafter, upon due notice given, the Surrogate adjudged the executors, including the executor Joseph S. Alberti, to be in contempt of court, and directed that a warrant should issue for the commitment of Joseph S. Alberti to the common jail of the county of Kings, there to remain until he had complied with the order and made the payments. A warrant was issued accordingly to the defendant, as Sheriff of Kings county, who made the arrest and commitment, as provided for, on November 7, 1930. On May 7, 1931, six months after the beginning of his imprisonment, Joseph S. Alberti was discharged from custody by the Sheriff, without having made the prescribed payments.
If an actual loss has been produced to a party to the proceedings by reason of the misconduct of a person adjudged guilty of contempt of court "a fine, sufficient to indemnify the aggrieved party, must be imposed upon the offender, and collected, and paid over to the aggrieved party, under the direction of the court." (Judiciary Law [Cons. Laws, ch. 30], § 773.) The Surrogate definitely determined that Joseph S. Alberti was guilty of a contempt of court in not making the prescribed payments; that such misconduct did produce loss to the persons directed to be paid in the sum of $16,979.10, including a loss to these plaintiffs of $6,454.70; "that the said Joseph S. Alberti for said misconduct is hereby fined the sum of $16,979.10." In these respects the order was in strict compliance with the provisions of section 773. "Where the misconduct proved consists *293
of an omission to perform an act or duty, which is yet in the power of the offender to perform, he shall be imprisoned only until he has performed it, and paid the fine imposed * * *." (Judiciary Law, §
The judgment should be affirmed, with costs.
POUND, Ch. J., CRANE, LEHMAN, O'BRIEN, HUBBS and CROUCH, JJ., concur.
Judgment affirmed.