#### Obermeyer & Liebman, Plaintiff, *v.*Abraham Adisky, Defendant. Joseph Gans, Attorney, Appellant.

First Department,

January 10, 1908.

Contempt — order that attorney pay costs— payment by deduction-from, amount of judgment—impairment of rights of complaining party essential. •

An attorney who has been ordered personally to pay costs on the vacating of an order to examine a debtor on supplementary proceedings cannot be held in contempt for failure to pay when it appears that the debtor on paying the judgment deducted the costs imposed upon the attorney..'.

One cannot he adjudged-in contempt of court in. the absence: of an adjudication that the.offense charged was calculated to, or actually did, defeat, impair mV prejudice the fights or remedies, of the complaining party.

Appeal by Joseph Gans from, an' oider of the Supreme Court,, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of Septe'niber, 1907, ad judging the appellant guilty of contémpt of court , in failing to obey an order directing the' payment, of certain costs. .

*Joseph, Gans,*for the appellant.

McLaughlin, J.:

The plaintiff ■ recovered a judgment for something over - $300 • against the defendant, and being unable to collect the same, proceedings supplementary to execution -were instituted. A copy. of the order directing'the defendant, to appear for examination was, returnable July 18, 1907, while the original order was made returnable .July 17, 1907. This fact haying been called to,the attention *273of the learned justice before whom the examination of the defendant was about to be had, the proceeding was dismissed, with ten dollars costs, and thereupon the appellant, as attorney for the plaintiff, on the same day obtained another order for the examination of the defendant in similar proceedings, which order was made returnable July 20, 1907. On the return day the judgment debtor appeared and by his attorney moved to, dismiss the proceeding upon the ' ground that the costs awarded on the dismissal of the first proceed- ‘ ing had not been paid. The motion was granted, with ten dollars costs, which, together with the ten dollars costs previously awarded, the attorney was directed personally to pay. The attorney did not pay the costs and thereiqion a motion was made to punish him for contempt by reason of such failure. The motion was granted, with an additional ten dollars costs, which he was directed to pay within a certain time or in default thereof that a warrant issue for his arrest. He appeals from this order.

The order directing the attorney to personally paythe costs is not. in this record, nor does it appear to have been before the court on the motion which resulted in the order appealed from. It is impossible, therefore, to determine the exact terms of it, except so far as the same may be ascertained from the affidavits of the attorneys. It would seem, before a person could be adj udged guilty of contempt in failing to obey an, order, that that order must be before the court; that is the best evidence of its terms.

But if it be assumed that the order contained the provisions claimed by the defendant in the affidavit made by his attorney, then it seems to me, upon the uncontradicted facts, there had been no violation of the order.' The fact is not disputed that on the day upon which the second proceeding was dismissed, the attorney for the plaintiff stated to the judgment debtor, in the presence of his attorney, that lie intended to appeal from the order resulting in the second dismissal, and the imposition of costs upon him personally; that the judgment debtor thereupon requested him not to appeal or take any further proceedings in the matter as he intended to pay the judgment; that lie subsequently did pay the judgment, received a satisfaction, which was filed, and the judgment canceled and dis-' charged of record; that when he paid such judgment a reduction *274was made, at his request, of more than twenty dollars, the costs of the motions above referred to.- 'The costs which the attorney was directed to pay belonged- to the defendant, not his attorney *(McIlvaine*v. *Steinson,*90 App. Div. 77; *Oishei*v. *Met. St. R. Co., No.*1, 110 id. 709), and, therefore,, when an allowance was made to him for that amount, it was a payment, and the attorney could not be compelled to pay the same over again. If the client had taken the twenty dollars, handed it to his -attorney and the attorney had then -handed it to the defendant, no óiie, I take it, would seriously contend that he had not complied with the Order directing him 'to pay the costs, and yet that, in effect, is.'precisely what took place. The plaintiff paid him twenty dollars by deducting it from the amount of the judgment which he had to pay.

Indeed, if the costs had not been paid, I do not think the attorney, even .though he was directed personally to pay the costs, was guilty of a contempt of court in failing to do so. The Code of Civil Procedure (§ 779) provides how costs of motions can be collected. It is by execution, .except where special provision is otherwise made. (Code Civ. Proc. § 2007.)

The order must also be reversed for another reason-; The attorney could not'be punished for contempt until it had been determined not only that he had- failed to pay the costs as directed, but that his failure in this respect was calculated "to,, or actually did, defeat, impair, impede or prejudice the rights or remedies of the complaining party. (Code Civ. Proc. § 2281.) The order appealed from contained no such adjudication, nor is there even a sugges-. tion in the record of any facts from which one might be inferred. *(Fischer*v. *Raab,*81 N. Y. 235; *First National Bank*v. *Fitzpatrick,*80 Hun, 75;, D*ailey*v. *Fenton,*47 App. Div. 418; Socialistic *Co-op. Pub. Assn.*v. *Kuhn, No. 2,*51 id. 583.)

The order appealed from, therefore, must be reversed, -with ten . dollars costs and disbursements, and the motion denied, with ten dollars costs.. . - ■■■

Patterson, P. J.,. Ingraham, Clarke and Houghton, ' JJ., concurred. ’

Order reversed, with ten. dollars costs and disbursements, and motion denied, with.ten dollars costs. . . .