Rathburn v. Weber.

of the precept-but the notice required to be indorsed upon the copy precept left with a person upon the premises forms no part of the precept; it need never contain it, either by indorsement or otherwise. The copy precept, to be effectual, as we have already seen, must have it indorsed, and "due service" requires not only that the copy be served, but that the notice was, when served, indorsed as the law requires, else it fails. This affidavit falls short of what the statut erequires. The test applied by counsel for respondent is, that the affiant would be liable to an indictment for perjury should it appear that the precept was indorsed (as in this case it is), with the section of the Code, while the copy served was not. Tested by this standard, I think he must fail, for the reason that affiant swears that she served the annexed precept, etc. An examination of the paper annexed shows a precept full and complete, it also shows more, but to that this affidavit is silent. So far as the affiant's affidavit goes, it is an absolute verity. How then, can it be said that she is guilty of perjury? If such is the law, then a person can be convicted of perjury for stating the truth. Suppose that this precept was indorsed with another section of the Code, and the affidavit contained the same statement as here. Could it be seriously argued that she served a copy of the precept, and that upon it was indorsed the section appearing, and that if it did not appear indorsed upon the copy served, that, therefore, the affiant was guilty of perjury? It may be claimed that this illustration is no test, being entirely foreign to the subject matter. But in a legal sense it is just as much a part and lot of the precept as the notice required to be indorsed upon the copy precept served, by section 2241 Code. The reasoning of Judge GROVER in People v. Matthews (38 N. Y. 451), sustains the views here advanced. There is no hardship in this rule; parties can as well make a proper affidavit of service as a proper precept. In this case, the affidavit is defective in not stating that not only was the copy precept served but that the notice required to be indorsed thereon

In re Morris.

was there when served.

The judgment must be reversed,

with costs.

IN RE PETITION, ETC., OF HENRY LEWIS MORRIS, FOR LEAVE TO ACCOUNT AS TRUSTEE, ETC.

BOWERY SAVINGS BANK AND ANOTHER, RESPONDENTE, v. HAIGH, APPELLANT.

SUPREME COURT, FIRST DEPARTMENT, GENERAL TERM, JUNE, 1887.

S$ 14, 2266 et seq., 2284.

Contempt-When remedy by action and by special proceeding concurrentAmount of fine-How costs and expenses determined.

Where an order made directed a trustee and a corporation, whichever might be in possession of a certain trust estate, to ascertain and separate from the effects of such a estate the properties belonging to a decedent at the time of her death, convert the same with all convenient speed into cash, pay therefrom a certain claim, and deliver the balance to her administrator,-Held, that the trustee, having proceeded in accordance with the mandates of the order and made an adjustment with the company which in effect did separate the trust estate and its assets from the property of the corporation, and having actually received the same, could derive no benefit from the uncertainty in the order as to the obligation to make a separation and payment being upon him or the company; that having, acquired the property, his duty was absolute to comply with the direction of the order for payment.[1]

Where, in such a case, by the failure of a trustee to pay the indebtedness, the creditors are deprived of $9,375.76 and the administrator is deprived of the sum of $2,093.72, the court is warranted in punishing the misconduct of the trustee in disobeying the order in imposing a fine to this extent upon him.[2]

Instance of a case in which a commitment for contempt sufficiently recited that a right or remedy had been impaired, impeded or prejudiced.[3]

In re Morris.

A civil contempt may be punished by the imposition of a fine sufficient to indemnify the party for the actual loss or injury proved, when the case is not one where the law specially prescribes that an action may be maintained to recover damages for the loss or injury,[4] and it is not sufficient to protect the party against proceedings and punishment as for a contempt that an action may on general principles be maintained for the same cause.[4]

The statute authorizing the imposition of a fine by way of indemnity for loss sustained by a civil contempt, does not provide for the addition to the amount of the loss, as a part of the fine, of the costs and expenses of the proceedings; [5,7] although it does authorize such addition where the fine is imposed in a case where there has not been any loss or injury established; [5] but in the former case by great liberality of construction, it seems, the costs and expenses may be included in the fine.[8]

In fixing the amount of a fine for a civil contempt there is no authority for the allowance of a counsel fee as a part of the expense of the proceeding, [9,13] and no more should be added to the fine where it is imposed by way of indemnity than legal costs and expenses of the proceedings. [13]

Sudlow v. Knox, (7 Abb. Pr. N. S. 411); [11] People ex rel. Woolf v. Jacobs (5 Hun, 428; aff'd, 66 N. Y. 8); [12] Power v. Village of Athens (19 Hun, 165), [12] followed; Van Valkenburgh v. Doolittle (4 Abb. N. C. 72), distinguished.[10]

To warrant the allowance of any sum for costs and expenses in a proceeding to punish for contempt, they should be legally ascertained and inserted in the order adjudging the party in contempt before it is entered and the party is committed to prison ;[14] it is too late to rectify the proceeding in this respect on appeal. [14] (Decided June 18, 1887.)

Appeal by William F. Haigh from an order adjudging him in contempt in failing to make payments out of certain trust funds pursuant to a former order made in this matter and fining him the amount of the payments so directed to be made and directing his commitment until the payment of such fine.

The order of commitment recited the making of an order requiring said Haigh to make such payments, the service of an order to show cause why he should not be punished for contempt in disobeying the same, the making

In re Morris.

of an order of reference on such motion to take proof in regard to the facts and report the same to the court with the opinion of the referee, and the making of such a report with an opinion by the referee that Haigh should be punished for such contempt; ordered that the report of said referee be confirmed in all things, and adjudged that the said Haigh was guilty of the misconduct alleged against him and of a willful contempt; also "that the aforesaid misconduct of said Wm. F. Haigh was calculated to and did defeat, impair, impede and prejudice a right or remedy of the petitioners, the Bowery National Bank of New York and Richard Hamilton as administrator of Eliza V. Haigh, deceased, who were parties to the proceeding in which this application was made. It also adjudged “that through the said misconduct of said Wm. F. Haigh the petitioner, the Bowery National Bank of New York, has sustained loss and damage to the amount of $9,375.76 and interest thereon from July 7, 1886; and that petitioner, Richard Hamilton, as administrator of Eliza V. Haigh, deceased, has sustained loss and damage to the amount of $2,093.42, and interest thereon from July 7, 1886, and that the petitioners have sustained a further loss of $1,250, being the proper costs and expenses of this proceeding." It further ordered and adjudged that said Haigh be fined said amounts, and directed his commitment to the common jail of the city of New York, until the payment thereof.

Other facts are stated in the opinion.

James R. Angel, for Haigh, trustee, appellant.

Before the appellant can be justly adjudged guilty of contempt in disobeying the said order, it must be shown that he was in actual possession of the trust estate. "The proceedings for contempt are stricti juris and all the rights of the defendant must be preserved. And no conviction should be had unless upon clear evidence.' McComb v. Weaver, 11 Hun, 272; Van Valkenburgh v.

In re Morris.

Doolittle, 4 Abb. N. C. 72; Fischer v. Raab, 81 N. Y. 235; Slater v. Merritt, 72 Id. 268 ... . The order adudging the trustee guilty of contempt is erroneous in law, because it inflicts a greater fine than any amount shown, or attempted to be shown, as coming into his hands. . . A fine cannot be imposed arbitrarily and capriciously; it must have a basis upon proof of damages or injury. Simmonds v. Simmonds, 6 Weekly Dig. 263; Sudlow v. Knox, 7 Abb. Pr. N. S. 412; De Jonge v. Brenneman, 23 Hun, 332; Clark v. Benninger, 75 N. Y. 344. There is no authority in law or in justice for the infliction of a fine in payment of a counsel fee, although called by the name of "costs and expenses," and committing a person to jail until the same is paid . . . The order herein adjudging the said Haigh guilty of contempt directs that he could be confined in the common jail until Mr. Marvin's counsel fee of $1,000 is paid. This is harsh and oppressive, People ex rel. Woolf v. Jacobs, 5 Iun, 428; 66 N. Y. 8; Sudlow v. Knox, 7 Abb. Pr. N. S. 412. The costs should be those fixed and allowed by statute, and not those which are usually called counsel fees, which rest in discretion." Matter of Jacobs, 49 How. Pr. 378; Albany City Bank v. Schermerhorn, 9 Paige, 372; Tinkney v. Langdon, 60 How. Pr. 184; 19 Hun, 171. The order herein was probably issued under section 2281 of the Code,-which contemplates that both the order and commitment must specify in what particular respect the rights or remedies of the petitioners have been prejudiced, defeated or impaired by the acts of the accused. This the commitment, notably does not state. It must show the nature of the contempt. The order recites an alleged neglect of duty on the part of the trustee; his refusal to pay the petitioners a sum of money never in his possession; but it nowhere shows how any act of the appellant" was calculated to, or actually did, defeat, impair, impede, or prejudice the rights or remedies of the petitioners." People ex rel. Walters v. Connor, 15 Abb. Pr. N. S. 433; DeWitt v. Dennis,