162 Misc. 118 | City of New York Municipal Court | 1936
This is a motion to punish the judgment debtor for contempt for failure to pay the installment of twenty dollars a month in satisfaction of the judgment, directed to be paid by an order entered October 9,1936, on a motion made pursuant to section 793 of the Civil Practice Act.
Judgment was entered in the Municipal Court, borough of Manhattan, against the judgment debtor on August 30, 1934, in the sum of $402.80, no part of which has been paid. The examination of the judgment debtor in supplementary proceedings disclosed that he is employed by the Federal government as a steamship inspector at a salary of $230 a month, less a small pension deduction. He has no children and the whereabouts of his wife are unknown. Outside of forty-eight dollars a month for rental of an apartment where he resides and his living expenses, there are no other financial obligations.
Two contentions were presented by the judgment debtor in opposition to the original motion, one, that the court had no power to make the order directing payments, since such a mandate would interfere with the efficiency of an employee in the Department of Commerce of the Federal government in the performance of his duties and was, therefore, an unconstitutional infringement of the powers of a Federal instrumentality, and the other objection is that section 793 of the Civil Practice Act is invalid and unenforcible because it may result in imprisonment for debt, and is for that reason a violation of the Fourteenth Amendment to the Constitution of the United States, and also of article 1, sections 5 and 6, of the Constitution of the State of New York.
As to the first objection, the power of the court vested in it by section 793 of the Civil Practice Act is upheld on the authority of the cases of Bool Floral Co., Inc., v. Coyne (158 Misc. 13) and Kaplan v. Peyser (247 App. Div. 660). In other words, the income of the judgment debtor which is directed to be paid in
At no time has the judgment debtor shown that he is not financially able from his income to make the payment of twenty dollars a month directed by the order. He is now in default as he did not make the first payment of twenty dollars directed to be paid on October 26,1936. He is, therefore, adjudged guilty of a contempt and is fined the sum of twenty dollars, which fine is to be paid on or before December 28, 1936. In default of payment, commitment may issue. Submit order.