Eigenmacht v. Herter

The justice at Special Term has adjudged that the judgment-debtor is guilty of a contempt of court and that his misconduct was calculated to and did defeat, im*406pair and prejudice the rights and remedies of the judgment-creditor to his actual loss and damage in the sum of $448.15 and then fined him this amount. There is no evidence to support the finding that the judgment-creditor has suffered any actual loss or damage and the order must be reversed on the authority of Ross v. La Cagnina, 68 Misc. Rep. 497.

We have not overlooked that in the case of Roos v. Treubig, 125 N. Y. Supp. 782, this court under similar circumstances, instead of reversing the order, modified it by imposing a fine of $250 and costs. It seems to us that, where the amount of the fine is based upon an erroneous finding of actual loss and damage, this court should not undertake to fix the amount of the fine. The Special Term has the right in its discretion to determine the amount of the fine where no actual loss is shown, and the appellate court has no right to substitute its own discretion.

Order reversed, with ten dollars costs and disbursements.

Present:. Giegerich, Lehman and Pendleton, JJ.

Order reversed, with ten dollars costs and disbursements.