In re Koronsky

EACOMBE, Circuit Judge.

It is manifest from the record that the particular contempt of which Koronsky was found guilty and for which he was fined was a deceit practiced upon the court. Having been served with summons and complaint, he failed to appear or answer, and, when judgment was entered against him by default, mov *720 ed to vacate the same on the ground that he had never been served. This motion was made on perjurious affidavits, including his own. The original order in the City Court has since been affirmed by the Appellate Term. Manifestly the offense was one peculiarly against the court, and of the sort where the punishment of the offender is a vindication of the dignity of the court; it does not lose that character because the statute authorizes the court to turn over the amount of the fine when collected to some person pecuniarily aggrieved by the offender’s conduct. See Spalding v. New York, 4 How. (U. S.) 21, 11 L. Ed. 858 , where it was held that fines for such offenses are not dischargeable under Bankr. Act Aug. 19, 1841, c. 9, 5 Stat. 440 , the language of which is substantially like that of the present act (Act July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3418]).

The District Judge apparently felt himself constrained to the conclusion that the Spalding Case did not apply, in view of the express terms of sections 8 and 14 of the New York Code of Civil Procedure; which Code was passed long subsequent to the making of the order which was reviewed in that case. Apparently his attention was not called to the fact that the statute law of the state when Spalding was punished contained provisions in all important respects the same as those now in force. In 2 Rev. St. N. Y. (3d Ed.) pt. 3, c. 3, tit. 2, art. 1, § 10, will be found the original of section 8 of the Code, and in part 3, c. 8, tit. 13, § 1, will be found the original of section 14 of the Code.

As to offenses against a court of the nature of a contempt, we are unable to appreciate, any distinction in character between the willful disobedience of a court’s mandate and the endeavor to deceive the court by false testimony willfully given by the offender; if any there be, the latter is the more offensive.

The state court should be left free to enforce the penalty it has imposed.

Order reversed.