In re Morris.

on general principles, be maintained for the same cause. It is clearly evinced by this section of the Code, that proceedings by way of contempt and the right to maintain an action may be concurrent, for it has declared that the payment and acceptance of the fine will constitute a bar to an action by the aggrieved party to recover the damages for the loss or injury. To legally answer the proceeding because of the right to maintain an action for damages, it must, according to the preceding portion of the section, be a case where the law has specially prescribed an action as the means of redress. That is not this case, for no special provision has been suggested or found restricting the party to an action in a case of this description. The misconduct of the trustee was such as to include a clear and palpable violation of the direction contained in the order made for the benefit of the petitioners, and it was attended with such a degree of loss and injury to them as will be no more than compensated by the fine which the court imposed upon him.

[5]

A more serious difficulty is presented by the appeal arising out of the imposition of the sum of $1,250 upon the trustee by way of costs and expenses. The section of the Code to which reference has been made has not, by its language, authorized such an addition to the fine itself. It has provided for no more, where actual loss or injury may be established, than the imposition of "a fine sufficient to indemnify the aggrieved party." The court has not been directed by anything contained in the section to add to that fine a further amount to defray costs and expenses. That power has been supplied by the succeeding portion of the section, but in the language creating it the authority by this language has been applied only to the class of cases where no actual loss or injury may be shown, and where the court may punish the party in contempt by a fine not exceeding the sum of $250, together with the amount of the complainant's costs and

expenses.

VOL. XIII.-5.

In re Morris.

[6] In this respect the directions differ from those contained in the preceding law, for that provided for the imposition of a fine by way of indemnity for the actual loss and injury, including also the costs and expenses of the proceedings.

It was further provided where no actual loss or injury might be established, as it has also been by this section of the Code, that there the fine should not exceed $250 over and above the costs and expenses of the proceedings. In the compilation made by the Code, it will, therefore, be seen that a material omission has been made from the statute, as it was enacted and made a part of the preceding law (3 R. S. 6 ed. 841, §§ 20, 22).

The power contained in the Code to award costs has not been expressly given as part of, or in addition to, the authority to impose the fine to indemnify the loss or injury. But the power to fine in that case has been expressly limited to the loss or injury caused by the misconduct. It prescribes the extent of the punishment for the act of contempt. And its language delegating that power was so employed in the revised statutes. If a larger signification could be given to its language, then there would have been no necessity for providing, as was then done, that the costs and expenses might be added to such fine.

In forming that statute, this addition was expressly made to it. And that discloses the understanding of the legislature to have been that without it the costs and expenses could not be added to the fine for indemnity. As it was necessary then, it seems to be equally so now, for this section of the Code in providing for the fine by way of indemnity, has so far made use of the same language as was contained in the preceding law.

[8]

It may be by great liberality of construction, if that shall be allowable in the class of cases in which a party may be punished for a contempt, that the provision in this section of the Code for costs and expenses should be

In re Morris.

extended so far as to include the class of cases provided for by the preceding portion of the section, where actual loss and injury have been produced. There certainly is no good reason why the costs and expenses should not in those cases be added to the punishment of the party in contempt. And perhaps as broad a construction as that should be given to this section of the Code, even at the risk of straining the language used by the legislature. But this case does not require a definite determination of this point, for this authority, if it can be held to exist, has been here

exceeded. The objection has been made by the [] counsel for the trustee that no authority existed for

the allowance of a counsel fee, and in that he is supported by the decided cases. It is true that a different view was taken of the provisions of the Revised Statutes

concerning the allowance of costs in these proceedings, [10] in Van Valkenburgh v. Doolittle, 4 Abb. N. C. 72.

But in that decision the prevailing authorities affecting this subject were not brought to the attention of the court. If they had been, a different decision upon it must have

been made, for it was held by the court of appeals in [11] Sudlow v. Knox, 7 Abb. Pr. N. S. 412, that a

counsel fee could not be allowed as part of the costs and expenses of such a proceeding. And that decision.

was followed in People v. Jacobs (5 Hun, 428; [12] affirmed, 66 N. Y. 8. And also in Power v. Village of Athens, 19 Hun, 165, 171). These cases, it will also be remembered, were decided under the Revised Statutes, which contained an express provision allowing the imposition of costs and expenses. But they will be applicable to and determine the effect of this section of the Code, if it shall be construed to have so far preserved the authority of the court as to permit the costs and expenses of the proceedings to be added to the fine imposed by way of indemnity for actual loss or injury.

They certainly, however, will justify no more than that, and that falls very far short of sustaining the

In re Morris.

allowance included in the order. To that extent, the trustee has legal ground for complaint. No more in any view should have been added to the fine for the indem[13] nity of the parties than the legal costs and expenses of the proceedings. The order should, therefore, be modi fied by reversing so much of it as directs the payment by the trustee of this sum of $1,250.

[14]

To warrant the allowance of any sum for costs and expenses they should have been legally ascertained and inserted in the order before it was entered and the trustee was committed to prison. It is too late to rectify that part of the proceeding now, and the order should, therefore, be so far only affirmed as to include the fine imposed upon the trustee. For the non-payment of that, he was properly committed to prison under the authority of section 2285 of the Code of Civil Procedure. For it has directed where the misconduct consists of an omission to perform an act or duty which it is yet in the power of the offender to perform, he shall be imprisoned only until he has performed it and paid the fine imposed. By the final order, what he is required to do is to pay the fine itself, which will perform the act or duty he omitted to perform, and in which his misconduct consisted. But as the order is affirmed in part only, it should be without costs of the appeal

VAN BRUNT, P. J., and BARTLETT, J., concurred.

Wilson v. Ryder.

WILSON, ET AL., RESPONDENTS, v. RYDER, APPELLANT.

CITY COURT OF NEW YORK, GENERAL TERM, OCTOBER, 1887.

$585.

Arrest-Effect of judgment in favor of defendant upon-When deposit in lieu of bail should be returned.

A judgment in favor of a defendant against whose person an order of arrest has been issued, effectually and finally discharges such order notwithstanding the plaintiff appeals therefrom; and although the judgment is reversed, the order cannot be reinstated upon motion, but a new order may issue.

A deposit in lieu of bail stands also lieu of actual custody of defendant,

and, like other species of bail, it is a substitute for the body, and when the corpus is legally discharged, the substitute, which is also only accessory, is discharged.

Upon the recovery of final judgment in favor of a defendant who has been arrested on an order of arrest, and discharged by making a deposit in lieu of bail, the deposit must be refunded to him, and this although the plaintiff has appealed from the judgment. (Decided October 28, 1887.)

Appeal by defendant from an order denying a motion for an order directing the return of a deposit made by him in lieu of bail on his arrest under an order granted herein.

The defendant was arrested under an order of arrest and deposited $300 in lieu of bail. The case was tried, and resulted in a judgment dismissing the cor.plaint; the defendant thereupon moved for an order directing the clerk to refund the deposit (Code Civ. Pro. $585). The court below denied the motion because the plaintiff had appealed from the judgment and given security to stay proceedings; and the defendant appealed.