131 Misc. 851 | N.Y. App. Term. | 1928
On January 10, 1928, the judgment creditor obtained a judgment for $433.50 against the defendant in the Municipal Court. Notice of appeal was filed January 28, 1928, and a surety company bond February 7, 1928. On January twelfth funds sufficient to satisfy the judgment had been “ attached ” in a third party proceeding by an order served on the Merchants Bank of New York.
On the same day the plaintiff obtained an order for the examination of the defendant before return of execution. The order is claimed to have been served on appellant on January sixteenth, requiring him to appear for examination on January twentieth. Defendant failed to appear and motion was made to punish him for contempt on February 9, 1928. The debtor seriously contests the service upon him andón the record it appears to'us to be extremely doubtful whether service has actually been made, Under such circumstances, assuming that a finding in favor of the respondent on that issue was proper, a nominal fine might be regarded as justified. The entire proceeding, however, has the appearance of an attempt to collect a part of the judgment by means of contempt proceedings which appear to us to have been unwarranted and the maximum fine entirely unjustified.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
All concur; present, Bijur, Lydon and Levy, JJ.