26 A.D.2d 295 | N.Y. App. Div. | 1966
Lead Opinion
Plaintiff judgment creditor moved to punish the judgment debtor for contempt for a willful failure to obey a subpoena in supplementary proceedings. As the long and ugly record in this matter shows, this failure to obey is consistent with the debtor’s cynical refusal to honor his own promises together with a total disregard of any and all process that has
The application seeks punishment for both a civil and criminal contempt. The debtor does not dispute that there is jurisdiction to punish for a civil contempt (while not conceding that a proper case for such sanction was made out) but disputes jurisdiction to punish for criminal contempt. We believe the respondent’s contention in this respect to be sound. The opening words of section 750 of the Judiciary Law provide: “ A court of record has power to punish for a criminal contempt, a person guilty of any of the following acts, and no others ”. There follow some eight specific situations in which the power may be employed. Section 753 deals with the power to punish for civil contempt. Here, again, are listed eight specific situations. Among these is: “5. A person subpoenaed as a witness, for refusing or neglecting to obey the subpoena, or to attend, or to be sworn, or to answer as a witness.” This should be contrasted with the same numbered paragraph of section 750, which reads: “5. Contumacious and unlawful refusal to be sworn as a witness; or, after being sworn, to answer any legal and proper interrogatory. ’ ’ Patently the situation here involved — failure to respond to a subpoena — is covered by section 753, the section on civil contempt, in direct terms and is not so covered in section 750, dealing with criminal contempt. Where the Legislature has specified the instances to which criminal and civil contempt are respectiv.ely applicable, the inclusion of one instance under one heading and its omission under another leave no room for interpretation. Failure to obey a subpoena in civil proceedings is therefore a civil but not a criminal contempt.
As stated, respondent does not deny jurisdiction for civil contempt. His defense to this phase of the application is that his refusal to obey the subpoena was not willful. Factually he sets out—what is not disputed — that the subpoena was both served upon him and made returnable on a date when Congress was in session. It is not entirely clear whether he contends that, being a Representative, he is excused during the session or whether he believed himself to be immune from process and hence did not willfully disobey the process. We will consider the question as if both points are raised.
Section 6 of article I of the United States Constitution gives to Senators and Representatives immunity from arrest (except in certain cases not material here) during attendance at
It might be conceivable that although the debtor here did not enjoy an exemption, he believed he did, and that consequently his disregard of the process was not willful. It would be a sufficient answer that he has submitted no affidavit to that effect. Nor could he very well do so in light of the prior decisions in his own case, which must have received his attention (see, e.g., James v. Powell, 43 Misc 2d 314).
There only remains a disposition which takes into consideration the foregoing factors. The debtor is guilty of a civil contempt. For such he is fined $250 and is sentenced to 30 days in jail. The order to be entered hereon will, however, be limited by the provisions in the dispositive paragraph of this opinion.
No costs are allowed on this application because the briefs submitted by both sides were not helpful.
The order of Special Term should be modified on the facts and the law and as a matter of discretion to find respondent guilty of a civil contempt and to punish him by a fine of $250 and a jail sentence of 30 days. Respondent shall appear on November 3, 1966 at 10:30 a.m. at Special Term, Part II, New York County Supreme Court, then and there to be examined or if he refuses to be examined, to surrender for service of the term imposed. Service of the term of imprisonment will be stayed during the examination and any adjournment of the same and the respondent, if he complies with the order of examination, will be excused from the imprisonment. Nothing herein contained shall prevent respondent from applying on good cause shown for fixing an alternate date for examination reasonably close to the date fixed. Service of a copy of the order herein may be made personally or by registered mail, addressed to respondent’s residence in New York County or his office in Washington, D. C. If respondent fails to appear on November 3, 1966 or any alternate date that may have been substituted in accord with this disposition, commitment may issue on an ex parte application.
Dissenting Opinion
While I am in accord with much of what is set forth in the majority opinion, I am unable to agree procedurally with the disposition. Service of the subpoena and the return date fixed therein was at a time while Congress was
Botein, P. J., McNally and Bastow, JJ., concur with Steuer, J.; Stevens, J., dissents in opinion.
Order, entered on September 9, 1966, modified, on the facts and the law and as a matter of discretion, without costs or disbursements, so as to find respondent guilty of a civil contempt and to punish him by a fine of $250 and a jail sentence of 30 days.