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Snow v. Shreffler

Supreme Court of New York, Appellate Division

December 29, 1911

SARAH L. SNOW, Respondent,

Page 423

APPEAL by James O. Sebring from an order of the Supreme Court, made at the Steuben Special Term and entered in the office of the clerk of the county of Yates on the 26th day of June, 1911, adjudging the appellant guilty of contempt of court and imposing upon him a fine.


Charles Marvin [James O. Sebring, in person], for the appellant.

M. A. Leary, for the respondent.


At the outset and before presenting the facts contained in the record, and in order the better to comprehend their application, I will state the questions of fact involved and of what Sebring is adjudged guilty of contempt.

There were two questions of fact litigated before Justice SUTHERLAND. First. Whether Sebring knew of the stipulation given by Gridley, the attorney for the defendant, about the fifteenth day of February of the present year. Second. Whether he violated the direction of Justice CLARK made February eighteenth of the present year to notify Mr. Leary, the attorney for the plaintiff, of the adjournment of the proceeding then pending to February twenty-fifth. The judge at Special Term has acquitted Sebring of any knowledge of the stipulation referred to on the ground that the evidence was insufficient

Page 424

to sustain a finding that he possessed such knowledge, so that charge is now eliminated. He, however, finds him guilty of contempt in that he failed to obey the direction of Justice CLARK to inform Leary of the adjournment referred to, and that he obtained the order on February twenty-fifth in willful violation of his promise to notify Leary of the postponement and without informing Justice CLARK of such omission.

The order, among other determinations, adjudges: 'That it was the duty of said Sebring to notify said Leary in accordance with the direction of the court and his promise; and when he had failed to give said notice it was his duty as an attorney and counsel of this court to inform the court of that failure; and his application for the order and obtaining the same without notifying the court that he had failed to carry out his promise was calculated to and did deceive the court, and was a wilful violation of the duty of Sebring as an officer of this court and as an attorney and counselor thereof.' Later on the order proceeds: 'And it is further ordered and adjudged, that the said order of February 25, 1911, was obtained by the said James O. Sebring through a wilful and deliberate violation of duty on his part in his capacity as an attorney and officer of the Court. And it is further ordered and adjudged that by reason of all the foregoing facts and conclusions, James O. Sebring is guilty of a civil contempt of Court for fraud and imposition upon the Court, and for a wilful neglect and violation of his duty as attorney and counsel of this Court.'

And Sebring is fined the amount of the fine imposed upon the defendant when he was imprisoned, with interest from the date of the incarceration; and the sheriff is further directed to commit him to the county jail to be confined until the fine is paid, or until he is otherwise discharged according to law.

On April 12, 1910, a judgment was recovered in this action against the defendant for $1,000. An execution was issued and returned wholly unsatisfied, and proceedings supplementary to execution were instituted, the order containing the usual clause prohibiting the defendant from transferring his property, etc. An order was granted by the county judge of Yates county adjudging the defendant guilty of contempt of court in violating the injunction order, in that he had paid some debts

Page 425

and disposed of some of his property in disobedience to the injunction order mentioned, and directed that he be committed to the Yates county jail until the fine of $1,100 be paid, and which was the amount of the judgment, with $100 costs, with which he was charged. The defendant was imprisoned in the jail on the 10th of June, 1910. The order of the county judge was affirmed by this court ( Matter of Snow v. Shreffler, 140 A.D. 915).

Three applications for the discharge of the defendant were made; two at Special Term, and one before the county judge of Yates county, each of which was denied, the last one January 7, 1911, by the Special Term. On the thirteenth of February of the present year an order to show cause was granted why the defendant should not be discharged, returnable February eighteenth at the Special Term at Bath, in the county of Steuben. One of the grounds for the renewal of this motion was that more than six months had elapsed since the imprisonment of the defendant, which may be a tenable ground. (See Judiciary Law [Consol. Laws, chap. 30; Laws of 1909, chap. 35], ยง 774.)

Abraham Gridley, of Penn Yan, was the attorney for the defendant in all these proceedings, but Mr. Sebring, of Corning, was the counsel and had actual charge of them, arguing each motion. On the fifteenth of February, Mr. Leary, who was the attorney for the plaintiff and who had opposed successfully the preceding applications for a discharge of the defendant, applied to Mr. Gridley at Penn Yan for a postponement for two weeks of the hearing to be had in pursuance of the order to show cause on the ground that his wife was very ill, requiring his constant personal attention. Mr. Gridley was somewhat reluctant to grant this motion. Mrs. Shreffler, who lived in Penn Yan, was very insistent that there should be no delay in this proceeding. Her husband was in jail; they had a son who was in the high school and, naturally, she felt very acutely the fact that her husband had been so long imprisoned. Gridley, therefore, stated to Mr. Leary that he did not wish to grant the application without conferring with Mr. Sebring. Mr. Leary left the office of Gridley and the latter communicated with Mr. Sebring by telephone, and Mr. Sebring stated

Page 426

that he would consent to a postponement of one week, but no longer, to which Mr. Gridley assented. Mr. Leary returned in the afternoon and claimed he had a right to this stipulation for the adjournment, and Mr. Gridley very reluctantly signed a stipulation postponing the ...

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