64 N.Y.S. 933 | N.Y. App. Div. | 1900
There is no doubt that the court has the power by way of punishment to strike out an answer of a defendant for a contempt of court. This was'’settled, if any doubt theretofore existed, by the recent decision of Devlin v. Hinman (161 N. Y. 115). But in a civil action before a défendant can be punished for a contempt of court, either by the imposition of a fine or the striking out of his answer, there must first be an adjudication that he is not only guilty of á contempt of court, but that his act — of which the opposing party complains—not only has a tendency to, but actually does, defeat, impair, impede or prejudice the rights or remedies of. the party complaining. (Fischer v. Raab, 81 N. Y. 235; First National Bank v. Fitzpatrick, 80 Hun, 75 ; Boon v. McGucken, 67 id. 251; Fall Brook Coal Co. v. Hecksher, 42 id. 534; Sandford v. Sandford, 40 id. 540 Matter of Swenarton v. Shupe, Id. 41.)
For the failure, therefore, of the court to adjudge the defendants ■guilty of a contempt of court, and that their acts constituting such contempt have been of injury to the plaintiff, the order appealed from must be reversed, with ten dollars costs and disbursements,, and the motion to strike out the answer denied, with teti dollars costs, without prejudice, however, to the plaintiff’s right to renew the motion upon other or additional papers.
Patterson, Rumsey, Ingraham and 'Hatch, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, without prejudice to plaintiff’s, right to renew upon other or additional papers. .