89 N.J. Eq. 469 | New York Court of Chancery | 1918
It is stipulated that the matter be now considered as if a writ of attachment had been issued to the sheriff and the respondent arrested and brought into court to answer for the alleged contempt set forth in the papers which preceded the granting of the order to show cause and the defence of the defendant is a general denial. The testimony that was taken upon the return of the order to show cause is to be considered as having been taken upon the return of the writ of attachment and the hearing as having been had under the two hundred and thirteenth rule.
In this case it appears that proceedings were taken in this court against respondent under what is commonly called the abatement statute. An order was issued requiring respondent to show cause why he should not he enjoined from continuing the nuisance complained of. The order restrained respondent from removing personal property from the building referred to in the pleadings. It was returnable October 7th. On that day on the hearing it developed that respondent, after notice of the
How, with respect to the punishment: I am frank to say that when the facts were first brought to my attention, I concluded that if the testimony showed that an offence had been committed, I would send the respondent to jail and for a term not less than three months. I have changed my mind. While the fact that respondent did not know that what he was doing was a contempt of this court cannot excuse him, yet it may be taken into consideration in mitigation of sentence. While the fact that respondent was under the influence of liquor cannot excuse him (he denies that he was under the influence of liquor, but I am under the impression that he was to some extent, at least; I cannot conceive of the man committing the assault that he did if he had not been, to some extent, under the influence of liquor), it may be taken into consideration in fixing the sentence. There is no doubt but that respondent was laboring under a great mental strain. Proceedings had been taken in this court which had the effect of completely wiping out his business, an unprecedented proceeding. His whole business, his whole livelihood was being, by the act of this court as he thought arbitrarily, taken away from him. I have also taken into consideration the fact that he has two children, I think, who would suffer if he were sent to jail, and the fact that this is the first case in which it has been held that an offence of this nature is a contempt. It has been generally assumed that before an act of this nature can constitute a contempt, the assault and battery must have been actually committed upon one who is a witness. I hold otherwise. Under all the circumstances, I will sentence respondent to pay a fine to the State of New Jersey in the sum of $150, and the costs of this proceeding, including a counsel fee to counsel for the application under the authority of the case of Hilton v. Hilton, 89 N. J. Eq. 422.