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ceeding, by reason of the misconduct proved against the offender, and the case is not one where it is specially prescribed by law, that an action may be maintained to recover damages for the loss or injury, a fine, sufficient to indemnify the aggrieved party, must be imposed upon the offender, and collected, and paid over to the aggrieved party, under the direction of the court. The payment and acceptance of such a fine constitute a bar to an action by the aggrieved party, to recover damages for the loss or injury. Where it is not shown that such an actual loss or injury has been produced, a fine must be imposed, not exceeding the amount of the complainant's costs and expenses, and two hundred and fifty dollars in addition thereto, and must be collected and paid, in like manner. A corporation may be fined as prescribed in this section.

R. S., 21 and 22, relating to contempts, amended; ?? 853 and 855, ante. Mayor, etc., v. N. Y. & S. I. F. Co., 64 N. Y.622; People ex rel. Garbutt v. R. & S. L. R. R. Co., 76 id. 294; Van Valken burgh v. Doolittle, 4 Abb. N. C. 72; Power v. Village of Athens, 19 Hun, 165; People v. Cooper, 20 id. 486; People ex rel. Wolf v. Jacobs, 66 N. Y. 8; Davis v. Sturtevant, 4 Duer, 148; Sudlow v. Knox, 7 Abb. N. S. 411; People v. Compton, 1 Duer, 38; see Ex parte Jacobs, 49 How. Pr. 370; s. c., 5 Hun, 428; 66 N. Y. 8; People ex rel. Mace v. Oliver, 66 Barb. 570; Clark v. Bininger, 75 N. Y. 344; Reynolds v. Gil• christ, 9 Hun, 203; Lansing v. Easton, 7 Paige, 364; People v. Spalding, 2id. 326.

§ 2285. Length of imprisonment.- Where the misconduct proved consists of an omission to perform an act or duty, which it is yet in the power of the offender to perform, he shall be imprisoned only until he has performed it, and paid the fine imposed. In such a case, the order, and the warrant of commitment, if one is issued, must specify the act or duty to be performed, and the sum to be paid. In every other case, where special provision is not otherwise made law, the offender may be imprisoned for a reasonable time, not exceeding six months, and until the fine, if any, is paid; and the order, and the warrant of commitment, if any, must specify the amount of the fine, and the duration of the imprisonment.

Id., 8% 23, 24 and 25, consolidated and amended. Erie R. R. Co. v. Ramsey, 45 N. Y. 637, 654; Tompson's Estate, 15 Abb. N. S. 230; People v. Bergen, 53 N. Y. 404; s. c., 15 Abb. N. S. 97; People v. Cowles, 3 Abb. Ct. App. 507; 8. c.. 4 Keyes, 38; People v. Compton, 1 Duer, 512; 8. C., 9 N. Y. 263: Seaman v. Duryea, 11 id. 324; s. c., 10 Barb. 523; Davison's Case, 13 Abb. 129. Matter of Watson, 3 Lans. 408; Ford v. Ford, 41 How. 169; People v. Nevins, 1 Hill, 154; Dewitt ". Dennis, 30 id. 131; Albany City Bank v. Schermerhorn, 9 Paige, 372; People v. Rogers, 2 ida

*See 76 N. Y. 294.

103; Macy v. Jordon, 2 Denio, 570; People v. Connor, 15 Abb. N. S. 430; Rugg v. Spenser, 59 Barb. 383; Ward v. Ward, 6 Abb. N. S. 79; Matter of Clark, 10 Week. Dig. 27; Park v. Park, 9 id. 391.

2286. When court may release offender.- Where an offender, imprisoned as prescribed in this title, is unable to endure the imprisonment, or to pay the sum, or perform the act or duty, required to be paid or performed, in order to entitle him to be released, the court, judge, or referee, or, where the commitment was made as prescribed in section 2457 of this act, the court, out of which the execution was issued, may, in its or his discretion, and upon such terms as justice requires, make an order, directing him to be discharged from the imprisonment.


Id., part of 20; L. 1843, ch. 9, amended; Code of Proc., 8302. People . Bennett, 4 Paige, 282; Van Wezel v. Van Wezel, 3 id. 38; Patrick v. Warner, 4 id. 397; People v. Cowles, 4 Keyes, 38; s. c., 3 Abb. Ct. App. 507; Ford v. Ford, 41 How. 169; s. c., 10 Abb. N. S. 74; People v. Campbell, 40 N. Y. 133, 138; Matter of Watson, 3 Lans. 408.

2287. Offender liable to indictment.-A person, punished as prescribed in this title, may, notwithstanding, be indicted for the same misconduct, if it is an indictable offence; but the court, before which he is convicted, must, in forming its sentence, take into consideration the previous punishment.

L Id., ? 26.

2288. Proceedings when accused does not ap pear. Where a person, arrested by virtue of a warrant of attachment, has given an undertaking for his appear. ance, as prescribed in this title and fails to appear, on the return day of the warrant, the court may either issue another warrant, or make an order, directing the undertaking to be prosecuted; or both.

Id., 27. City of Albany v. Schermerhorn, 9 Paige, 372; Brush v. Lee 1 Abb. Ct. App. 238; Rugg v. Spenser, 59 Barb. 383, 399; Barton v. Butts, 32 How. 456.

2289. Undertaking; when prosecuted by person aggrieved. The order directing the undertaking to be prosecuted, may, in the discretion of the court, direct the prosecution thereof, by and in the name of any party aggrieved by the misconduct of the accused. In such a case, the plaintiff may recover damages, to the extent of the loss or injury sustained by him, by reason of the misconduct, together with the costs and expenses of prosecuting the special proceeding in which the warrant

was issued; not exceeding the sum specified in the undertaking.

Ed., 28 28 and 29, amended. Bank of Buffalo v. Boughton, 21 Wend. 57; People v. Munro, 15 How. 494; Barton v. Butts, 32 id. 456; Anony. mous, 3 Wend. 423; Code of Proc., 371.

§ 2290. Id.; by attorney-general, etc.-If no party is aggrieved by the misconduct of the accused, the order must, and, in any case where the court thinks proper so to direct, it may direct the prosecution of the under taking, by the attorney-general, or by the district-attorney of the county in which it was given, in the name of the people. In an action, brought pursuant to the order, the people are entitled to recover the entire sum, specified in the undertaking. Out of the money collected, the court, which directed the prosecution, must direct that the person, at whose instance the warrant was issued, be paid such a sum as it thinks proper, to satisfy the costs and expenses incurred by him, and to compensate him for loss or injury sustained by him, by reason of the misconduct. The residue of the money must be paid into the treasury of the State.

Id., 22 30 and 31.

§ 2291. Sheriff liable for taking insufficient sureties. After the return of an execution, issued upon a judgment, rendered in an action upon the undertaking, an action, to recover the amount of the judgment, may be maintained against the sheriff, where it appears that, at the time when the undertaking was given, the sureties were insufficient, and the sheriff had reasonable grounds to doubt their sufficiency. Such an action may be maintained by the plaintiff, in whose favor the judg ment was recovered. If the people were plaintiffs the action must be prosecuted by the attorney general or the district-attorney; and any money collected therein must be disposed of, as prescribed in the last section.

Il., 32.

2292. [Amended, 1895.] Punishment of misconduct at trial term.- Where a misconduct, which is punishable by fine or imprisonment, as prescribed in this title, occurs at a trial term, or with respect to a mandate returnable at such term, and was not punished at the term at which it occurred; the supreme court may inquire into and punish the misconduct, as if it

had occurred at a special term of the supreme court, held in the same county, or with respect to a mandate returnable at such a special term.

In effect Jan. 1, 1896; L. 1895, ch. 946.
Id., § 33.


Proceedings to collect a fine.

SEC. 2293. Clerk to make schedule of fines imposed. 2294. Warrant to be issued by him.

2295. Id.; when delinquent resides in another county.
2296. Execution of warrant.

2297. Return thereof.

2298. Proceedings if fine not collected.
2299. Who to be included in schedule.
2300. Liability of sheriff.

2301. Application of this title.

2293. Clerk to make schedule of fines imposed. -Where a fine has been imposed by a court of record, upon a grand or trial juror, or upon any officer or other person, without being accompanied with an order for the immediate commitment of the person so fined, until the fine is paid, the clerk of the court, immediately after the close of the term at which the fine was im posed, must prepare a schedule, containing, in separate columns, the following matters:

1. The name of each person fined.

2. His place of residence, where it appears, from the papers on file or before the court, to be within the county.

3. The amount of the fine imposed upon him. 4. The cause for which the fine was imposed.

The clerk must subjoin to the schedule a certificate, to the effect, that it contains a true abstract of the orders imposing fines, and must annex it to the warrant specified in the next section.

2 R. S. 484, 32 22, 24 (2 Edm. 506). See Roseboom v. Van Vechten, 5 Denio, 414.

§ 2294. Warrant to be issued by him.-The clerk must immediately issue a warrant, under the seal of the court, directed to the sheriff of the county, and com

manding him to collect from each of the persons, named in the schedule annexed to the warrant, the sum therein set opposite that person's name; and to pay over the sum collected, to the treasurer of the county. The warrant is the process of the court, by which the fines were imposed.

Id.. 23.

$2295. Id.; when delinquent resides in another county. If a delinquent resides in another county, a separate warrant, for the collection of the fine imposed upon him, with an appropriate schedule annexed thereto, must be issued, in like manner, to the sheriff of the county where he resides.


2296. Execution of warrant.-The sheriff, to whom a warrant is issued, must collect each fine out of the personal property of the person fined, as prescribed in chapter thirteenth of this act, for the collection, by levy upon and sale of personal property, of an execution issued out of a court of record; and he is entitled to like fees thereupon. If sufficient personal property of a delinquent cannot be found to pay the fine and the fees, the sheriff must arrest the delinquent, and detain him in custody until he pays the same, as upon an execution against the person, issued in an action, out of the supreme court; and he is entitled to like fees thereupon.

Id., 25.

§ 2297. [Amended, 1895.] Return thereof.— The sheriff must return the warrant, with his proceeding thereupon, at the term of the court; or, where the fine was imposed, in any county except New York, by the supreme court, or the county court at the term of the county court; held next after the expiration of sixty days from the receipt thereof. If he fails to do so, the district attorney must take the same proceedings to compel a return, as may be taken by a judgment creditor, where a sheriff omits to return an execution, issued out of the supreme court.

In effect Jan. 1, 1896; L. 1895, ch. 946.
§ 26.

§ 2298. Proceedings if fine not collected. Where it appears, by return, that a fine remains uncollected, and

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