Page images

227; Albany City Bank v. Schermerhorn, 9 Paige, 372, People v. Comp ton, 1 Duer, 512; Herring v. Tylee, 1 Johns. Cas. 31 ; People v. Brown, 6 Cow. 41 ; People v. Murphy, i Daly: 462.

§ 2281. When and how accused to be punished. If it is determined that the accused has committed the offence charged; and that it was calculated to, or ac. tually did, defeat, impair, impede, or prejudice the rights or remedies of a party to an action or special proceeding, brought in the court, or before the judge or referee; the court, judge, or referee must make a final order accordingly, and directing that he be punished by fine or imprisonment, or both, as the nature of the case requires. A warrant of commitment must issue accord. ingly.

Id., 820. Albany City Bank v. Schermerhorn, 9 Paige, 372; Brush o. Lee, 1 Abb. Ct. App. 238 ; Rugg v. Spenser, 59 Barb. 383, 399 ; Seaman o. Duryea, 11 N. Y. 324; s. C., 10 Barb. 523; Davison's Case, 13 Abb. 129; Matter of Watson, 3 Lans. 408 ; Ford v. Ford, 41 How, 169; Sudlow v. Knox, 7 Abb. N. S. 411 ; Cochran v. Ingersoll, 73 N. Y. 613; People v. Bergen, 53 id. 404; Watson v. Nelson, 16 Alb. L. J. 103.

$ 2282. Id. ; upon return of habeas corpus.- Where the accused is brought up by virtue of a writ of habeas corpus, he must, after the final order is made, be remanded to the custody of the sheriff, or other officer, to whom the writ was directed. If the final order directs that he be punished by imprisonment, or committed until the payment of a sum of money, he must be so im. prisoned or committed, upon his discharge from custody, under the mandate, by virtue of which he is held by the sheriff, or other officer.

2 R. S. 560, 5 (2 Edm. 580). Albany City Bank v. Schermerhorn, 9 Paige, 372 ; Brush v. Lee, 1 Abb. Ct. App. 328; Matter of Smethhurst, 3 Code R. 55; s. C., 4 Row. 369 ; 2 Sandf. 724.

$ 2283. Id.; upon return of order to show cause.-Upon the return of an order to show cause, the questions which arise must be determined, as upon any other motion ; and, if the determination is to the effect speci. fied in the last section but one, the order thereupon must be to the same effect as the final order therein pre. scribed. Upon a certified copy of the order so made, the offender may be committed, without further process.

New. Pitt v. Davison, 37 N. Y. 235; Albany City Bank v. Schermer horn, 9 Paige, 372; Brush v. Lee, 1 Abb. Ct. App. 238; Rugg v. Spenser, 39 Barb. 383, 399.

2284. Amount of fine. If an actual loss or injury has been produced to a party to an action or special pro.

ceeding, by reason of the misconduct proved against the offender, and the case is not one where it is specially prescribed by law, that an action may be maintained to recover damages for the loss or injury, a fine, sufficient to indemnify the aggrieved party, must be imposed upon the offender, and collected, and paid over to the aggrieved party, under the direction of the court. The payment and acceptance of such a fine constitute a bar to an action by the aggrieved party, to recover damages for the loss or injury. Where it is not shown that such an actual loss or injury has been produced, a fine must be imposed, not exceeding the amount of the complain. ant's costs and expenses, and two hundred and fifty dol. lars in addition thereto, and must be collected and paid, in like manner. A corporation may be fined as prescribed in this section.

R. S., 8221 and 22, relating, to contempts, amended; 22 853 and 855, ante. Mayor, etc., v. N. Y. & S. I. F. Co., 64 N. Y.622; People ex rel. Garbutt v. R. & S. L. R. R. Co., 76 id. 294; Van Valkenburgh v. Doolittle, 4 Abb. N. C. 72; Power_v. Village of Athens, 19 Hun, 165; People v. Cooper, 20 id. 486; People ex rel. Wolf v. Jacobs, 66 N. Y. 8; Davis v. Sturtevant, 4 Duer, 148; Sudlow v. Knox, 7 Abb. N. S. 411; People v. Compton, 1 Duer, 38; see Ex parte Jacobs, 49 How. Pr. 370 ; s. c.,5 Hun, 428; 66 N. Y. 8; People ex rel. Mace v. Oliver, 66 Barb. 570; Clark v. Bininger, 75 N. Y. 344 ; Reynolds v. Gil. christ, 9 Hun, 203; Lansing v. Easton, 7 Paige, 364 ; People v. Spalding, 2 id. 326.

$ 2285. Length of imprisonment.- Where the misconduct proved 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. In such a case, the order, and the warrant of commitment, if one is issued, must specify the act or duty to be performed, and the sum to be paid. In every other case, where special provision is not otherwise made by law, the offender may be imprisoned for a reasonable time, not exceeding six months, and until the fine, if any, is paid ; and the order, and the warrant of commitment, if any, must specify the amount of the fine, and the duration of the imprisonment.

Id., 8% 23, 24 and 25, consolidated and amended. Erie R. R. Co. v. Ramsey, 45 N. Y. 637, 654 ; Tompson's Estate, 15 Abb. N. S. 230; People 0. Bergen, 53 N. Y. 404; 9. c., 15 Abb. N. S. 97; People v. Cowles, 3 Abb. Ct. App. 507 ; 8. C., 4 Keyes, 38; People v. Compton, 1 Duer, 512; §. C., 9 N. Y. 263; Seaman v. Duryea, il id. 324; 8. c., 10 Barb. 523; Davison's Case, 13 Abb. 129. Matter of Watson, 3 Lans. 408; Ford v. Ford, 11 How. 169; People v. Nevins, 1 Hill, 154; Dewitt . Dennis, 30 id. 131; Al. bany City Bank v. Schermerhorn, 9 Paige, 372; People v. Rogers, 2 ide

* See 76 N. Y. 294,

103; Macy v. Jordon, 2 Denio, 570 ; People v. Connor, 15 Abb. N. S. 430 ; Rugg v. Spenser, 59 Barb. 383; Ward v. Ward, 6 Abb. N. S. 79; Matter of Clark, 10 Week. Dig. 27; Park v. Park, 9 id. 391.

§ 2286. When court may release offender.- Where an offender, in prisoned as prescribed in this title, is unable to endure the imprisonment, or to pay the sum, or perform the act or duty, required to be paid or performed, in order to entitle him to be released, the court, judge, or referee, or, where the commitment was made as prescribed in section 2457 of this act, the court, out of which the execution was issued, may, in its or his discretion, and upon such terms as justice requires, make an order, directing him to be discharged from the imprisonment.

Id., part of 20; L. 1843, ch. 9, amended; Code of Proc., 8302. People v. Bennett, 4 Paige, 282; Van Wezel v. Van Wezel, 3 id. 38 ; Patrick' v. Warner, 4 id. 397; People v. Cowles, 4 Keyes, 38 ; 8. C., 3 Abb. Ct. App. 507; Ford v. Ford, 41 How. 169 ; s.c., 10 Abb. N. S. 74 ; People v. Campbell, 40 N. Y. 133, 138; Matter of Watson, 3 Lans. 408.

§ 2287. Offender liable to indictment.-A person, punished as prescribed in this title, may, notwithstanding, be indicted for the same misconduct, if it is an indictable offence ; but the court, before which he is convicted, must, in forming its sentence, take into consid. eration the previous punishment. | Id., % 26.

§ 2288. Proceedings when accused does not apo pear.- Where a person, arrested by virtue of a warrant of attachment, has given an undertaking for his appear. ance, as prescribed in this title and fails to appear, on the return day of the warrant, the court may either is. sue another warrant, or make an order, directing the undertaking to be prosecuted; or both.

Id., 227. City of Albany v. Schermerhorn, 9 Paige, 372; Brush v. Lees 1 Abb. Ct. App. 238; Rugg v. Spenser, 59 Barb. 383, 399; Barton v. Butts, 32 How. 456.

§ 2289. Undertaking; when prosecuted by person aggrieved. The order directing the undertaking to be prosecuted, may, in the discretion of the court, direct the prosecution thereof, by and in the name of any party aggrieved by the misconduct of the accused. In such a case, the plaintiff may recover damages, to the extent of the loss or injury sustained by him, by reason of the misconduct, together with the costs and expenses of prosecuting the special proceeding in which the warrant

was issued; not exceeding the sum specified in the un. dertaking.

hl., 22 28 and 29, amended. Bank of Buffalo v. Boughton, 21 Wend. 57; People v. Munro, 15 llow. 494 ; Barton v. Butts, 32 id. 136 ; Anony• mous, 3 Wend. 423; Code of Proc., 371.

§ 2290. Id.; by attorney-general, etc.-If no party is aggrieved by the misconduct of the accused, the order must, and, in any case where the court thinks proper so to direct, it may direct the prosecution of the undertaking, by the attorney-general, or by the district-at. torney of the county in which it was given, in the name of the people. In an action, brought pursuant to the order, the people are entitled to recover the entire sum, specified in the undertaking. Out of the money col. lected, the court, which directed the prosecution, must direct that the person, at whose instance the warrant was issued, be paid such a sum as it thinks proper, to satisfy the costs and expenses incurred by him, and to compensate him for loss or injury sustained by him, by reason of the misconduct. The residue of the money must be paid into the treasury of the State. Id., 22 30 and 31.

$ 2291, Sheriff liable for taking insufficient sureties.-After the return of an execution, issued upon a judgment, rendered in an action upon the undertaking, an action, to recover the amount of the judgment, may be maintained against the sheriff, where it appears that, at the time when the undertaking was given, the sureties were insufficient, and the sheriff had reasonable grounds to doubt their sufficiency. Such an action inay be maintained by the plaintiff, in whose favor the judge ment was recovered. . If the people were plaintiffs the action must be prosecuted by the attorney-general or the district-attorney; and any money collected therein must be disposed of, as prescribed in the last section. 11., 8 32.

§ 2292. [Amended, 1895.] Punishment of misconduct at trial term.- Where a misconduct, which is punishable by fine or imprisonment, as prescribed in this title, occurs at a trial term, or with respect to a mandate returnable at such term, and was not punished at the term at which it occurred; the supreme court may inquire into and punish the misconduct, as if it

had occurred at a special term of the supreme court, held in the same county, or with respect to a mandate returnable at such a special term, In effect Jan. 1, 1896; L. 1895, ch. 946. Id., $ 33.


Proceedings to collect a fine.

Sec. 2293. Clerk to make schedule of fines imposed.

2294. Warrant to be issued by him.
2295. Id. ; when delinquent resides in another county,
2296. Execution of warrant.
2297. Return thereof.
2298. Proceedings if fine not collected,
2299. Who to be included in schedule.
2:00. Liability of sheriff,
2301. Application of this title,

$ 2293. Clerk to make schedule of fines imposed. -Where a fine has been imposed by a court of record, upon a grand or trial juror, or upon any officer or other person, without being accompanied with an order for ihe immediate commitment of the person so fined, until the fine is paid, the clerk of the court, immediately after the close of the term at which the fine was im. posed, must prepare a schedule, containing, in separate columns, the following matters:

1. The name of each person fined.

2. His place of residence, where it appears, from the papers on file or before the court, to be within the county.

3. The amount of the fine imposed upon him. 4. The cause for which the fine was imposed.

The clerk must subjoin to the schedule a certificate, to the effect, that it contains a true abstract of the orders imposing fines, and must annex it to the warrant speci. fied in the next section.

2 R. S. 481, 32 22, 24 (2 Edm. 50f). See Roseboom v. Van Vechten, 5 Denio, 414.

$ 2294. Warrant to be issued by him. The clerk must immediately issne a warrant, under the seal of the court, directed to the sheriff of the county, and copi

« PreviousContinue »