Opinion
December 8, 1937.
Lewis M. Fenberg, for the motion.
Joseph H. Kassoy, opposed.
Where a proceeding is to punish a judgment debtor for his failure to obey an order made pursuant to section 793 of the Civil Practice Act, the actual loss or injury to the judgment creditor is the amount due at the time of the hearing of the motion. And this amount is the limit of the fine that may be imposed pursuant to the provisions of section 773 Jud. of the Judiciary Law. ( Matter of Williamson v. Drogaris, 248 A.D. 627, and cases there cited.)
At the time the pending motion to punish the judgment debtor for his failure to obey the order made herein pursuant to section 793 of the Civil Practice Act came on for hearing he had filed a voluntary petition in bankruptcy in the United States District Court for the Southern District of New York. On July 31, 1937, one day before the hearing of this motion, an order was made by Judge GODDARD in the Federal court staying the judgment creditor from any proceedings for the collection of the judgment herein. This court is without power to make any order to punish the judgment debtor for his failure to pay any of the installments due subsequent to July 31, 1937. ( Matter of Morris Plan Company of N.Y. v. Shear, 164 Misc. 712, opinion by EVANS, J., of this court.)
The pending motion is granted, with thirty dollars costs, to the extent of fining the judgment debtor the total of the installments due at the date of the stay ordered by the Federal court; in all other respects the motion is denied, without prejudice.
Settle order in accordance with this decision.