Albert H. Dollard, Appellant, v. Benjamin Koronsky and Joseph Koronsky, Doing Business under the Firm Name of B. Koronsky & Son, Defendants. In the Matter of the Motion in this Action to Adjudge Max E. Bloch, Respondent, Guilty of Contempt of Court and to Punish Him Therefor

Albert H. Dollard, Appellant, v. Benjamin Koronsky and Joseph Koronsky, Doing Business under the Firm Name of B. Koronsky & Son, Defendants. In the Matter of the Motion in this Action to Adjudge Max E. Bloch, Respondent, Guilty of Contempt of Court and to Punish Him Therefor. First Department, May 20, 1910. Contempt— guaranty and suretyship — willful dissipation of property. by surety. The surety on an undertaking given to release the levy of an execution who has deliberately divested himself of all property in order to prevent the enforcement of his liability cannot be punished for contempt of court. Appeal by the plaintiff, Albert H. Dollard, from an order of the Appellate Term of the Supreme Court, bearing date the 21st day of March, 1910, and entered in the office of the clerk of the county of New York, reversing an order of the Oity Court, entered in the office of the clerk of said court on the 9th day of October, 1909, which adjudged Max' E. Bloch guilty of contempt of court and provided for punishment therefor. Yorke Allen, for the appellant. Louis Marshall, for the respondent. [MAJORITY — Scott, J.:] Scott, J.: We find ourselves forced to the conclusion that the respondent’s conduct, reprehensible though it was, did not constitute a contempt of court. On June 24, 1908, he signed an undertaking in order to release the levy of an execution against the property of one Koronsky. He then swore that he was worth $2,800 over and above all debts and liabilities, and his undertaking was that Koronsky would pay any judgment that might be obtained against him in the action. A judgment was obtained, the respondent refused to pay it, and the plaintiff had judgment against him. Being examined upon supplementary proceedings in March, 1909, he swore to a most incredible tale. He said that when he signed the undertaking in June, 1908, he had owned real and personal property worth about $3,800, and since that time had earned about $900. He then told a riiost extraordinary and unbelievable story as to how he had spent and dissipated all of this property, leaving himself penniless. It is quite possible that he never had as much property as he testified to, and it is incredible, if he ever had it, that he disposed of it as he swears he did. The court, however, accepting his statements as true, found, as it was quite justified in doing, that he had deliberately denuded himself of all his property in order, to prevent the collection of any judgment that might be recovered against him on the undertaking. Accepting this finding as fully sustained by the proofs, wé are constrained to hold, for the reasons well stated by Mr. Justice Seabuby, writing for the Appellate Term (67 Misc. Rep. 90), that the respondent had not been technically guilty of a contempt of court. The result is regrettable for the plaintiff has been greatly wronged. His experience adds another illustration to those which are frequently brought to our attention, of the insecurity of personal bonds dependent solely upon the continued solvency of the surety. The order should be affirmed, without costs. Ingraham, P. J., Laughlin, Clarke and Miller, JJ., concurred. Determination affirmed, without costs. See, also, 64 Misc. Rep. 611.— [Rep.