#### Dory Osterhoudt, Appellant, *v.*Prudential Insurance Company of America, Respondent.

Third Department,

November 26, 1913.

Contempt — authority of county judge to refuse to impose penalty for failure to serve documents under order affirmed by Appellate Division—judgment under section 1317 of the Code of Civil Procedure.

Where, in an action on a life insurance policy, the plaintiff has obtained from the County Court an order directing the defendant to show cause why it should not be adjudged in contempt for failing to serve certain papers under an order granted by the County Court, and affirmed by the Appellate Division, and why its answer should not be stricken out, and why the plaintiff should not have judgment, as upon default, the County Court should not refuse to impose a penalty.

Upon appeal from an order of the County Court refusing to impose a penalty, the Appellate Division may, under section 1317 of the Code of Civil Procedure, strike out the defendant’s answer and direct judgment in favor of the plaintiff.

Smith, P. J., and Kellogg, J., dissented.

*292Appeal by the plaintiff, Dory Osterhoudt, from an order of the County Court of Ulster county, entered in the office of the clerk of said county on the 26th day of November, 1912, denying his motion to adjudge the defendant in contempt, to strike out its answer and for judgment in plaintiff’s favor as upon a default.

*N. Frank O’Reilly [John D. Eckert*of counsel], for the appellant.

*William D. Brinnier,*for the respondent.

Howard, J.:

This action, which is on a life insurance policy, was first tried in the Kingston City Court; it resulted in a judgment for the plaintiff. On appeal to the County Court the plaintiff again procured a judgment. This judgment was reversed on the law and the facts by the Appellate Division' and a new trial was ordered. (136 App. Div. 123.) Before proceeding to trial again the plaintiff thought it necessary to procure certain documents or copies thereof alleged to be in the possession of the defendant. ■ An order directing the defendant to produce these documents of show cause why they were not produced was issued by the county judge. The defendant did not produce the documents or show satisfactory cause for their non-production, and the County Court being convinced of the necessity for the papers and the insufficiency of the defendant’s excuses, issued an order directing the defendant to •serve copies of the papers or some of them upon the plaintiff. The defendant appealed from this order, but the Appellate Division unanimously affirmed the determination of the County Court (148 App. Div. 907), whereupon the defendant served copies of several of the papers which it had sworn it could not serve, but neglected to serve copies of several others — those not served being those most important to the plaintiff’s contention. The plaintiff thereafter obtained from the County Court an order directing the defendant to show cause why it should not be adjudged in contempt for failing to serve all the papers, and why its answer should not be stricken out and why the plaintiff should not have judgment as upon default. The *293County Court refused to adjudge the defendant guilty of contempt or strike out the answer or grant judgment by default, and in all things denied the plaintiff’s motion. An appeal from this order presents the matter to this court.

The defendant was clearly in contempt. After a full hearing on the question before the County Court that court ordered copies of certain papers to be served. An appeal to this court resulted in an unanimous affirmance of the order of the County Court. This order of the court below, affirmed by the Appellate Division, became the law. It was the duty of the defendant to'obey this law; its failure to do so was a contempt for the mandate of the court. No excuses are now available and the defendant must suffer some of the penalties for its defiance of the court else the dignity of court must suffer. Unless the court compels obedience to its orders its orders are nullities. The determination of the Appellate Division in this instance was binding upon the County Court. It was not for the County Court to hear over again these same excuses; its only duty was to compel obedience to the law. That a county judge other than the one who granted the first order sits upon the bench in no manner alters the situation. Neither can this court at this time hear again the defendant’s reasons for not producing the papers or consider the merits of the original controversy. The law has been established; it must now be observed. The County Court had discretion as to what penalty it would impose, but its discretion did not go to the extent of refusing to impose any penalty. As was said by Mr. Justice Woodward in *Brown*v. *Braunstein*(86 App. Div. 499): “It is true that punishment for contempt rests in a measure upon discretion, hut it is a judicial discretion, and the dignity of the court, as well as the interests of litigants, demands that where the deliberate judgments of the court are set at defiance, punishment shall follow upon the transgression.”

This court has power to do what the County Court should have done. (Code Civ. Proc. § 1317; *Wallace*v. *Wallace,*140 App. Div. 800.) It, therefore, follows that the order appealed from should be reversed, with ten dollars costs and disbursements and the costs of the motion below, and that an order *294should be entered striking out the defendant’s answer and directing that a judgment be entered in favor of the plaintiff against the defendant as upon a default in pleading.

All concurred, except Smith, P. J., and Kellogg, J., dissenting.

Order reversed, with ten dollars costs and disbursements, and motion granted striking out the defendant’s answer and directing that judgment be entered in favor of the plaintiff against the defendant as on default in pleading, with costs.