The plaintiffs recovered - a jiidgment against- one Oummislcey for $131.45, upon which supplementary proceedings were instituted •and an order made requiring him to appear for examination as to his property. This he failed to do, and in proceedings for contempt -an order was made adjudging him guilty of contempt. The order contained the following clauses : '
“ III. That the said John Cumiskey for said misconduct is hereby lined the sum of one hundred and ninety-one-10/100 dollars, being said sum, together with ten dollars costs of this motion, for the indemnity and use of and to be paid to the jtidglnent creditors herein.
“ IV. That said John Cumiskey be committed by the Sheriff of the County of Kings to the County Jail of said county, to be there detained in s close custody until he shall pay said sum or be discharged according to law.” . ' 1
Cummiskey was taken into -custody by the sheriff under such order and confined in the county jail, where he remained for six months and was then discharged by the sheriff. The' plaintiffs brought this action for escape, and the- defendant - appeals from a judgment rendered against him. - • ■ '
Section 2285 of the Code of Civil Procedure, relating -to proceedings for contempt,, provides that “ 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 * * * must specify the act or duty to be performed and the sum to be paid.” .
The misconduct proved in this instance was a failure to submit to examination,_and the amount or fine to be paid was stated. But the. order for commitment did not comply with section 2285 by stating the act to be performed; although it did state the amount of the fine to be paid. It was held in People ex rel. Post v. Grant (50 Hun, 243, 247), where in proceedings for contempt a commitment instead of an order was issued, as follows : “ In the case at bar the warrant of commitment does not specify the acts to be performed, but refers to the order and- judgment. This is not a compliance with the requirements of the Code. -The commitment must specify the act *209to be done, where one is issued, and no reference can be had to any other paper to supply this defect. The reason of this, provision is obvious; it is for the purpose of enabling the sheriff to determine when the prisoner is entitled to his liberty.” The court added (p. 248): “ The provisions of the Code in respect to this matter seem to be distinct, and must be followed. The commitment, therefore, being fatally defective, the relator was entitled to his discharge from arrest under this commitment.”
It will be observed that in the Post case the proceeding was habeas corpus. The return of the sheriff stated that the commitment referred to the order under which the relator was held and which directed that the relator should be committed to jail there to remain charged with the contempt mentioned in the order until he should have paid the fine imposed upon him for misconduct and until he should cancel certificates of stock. In the present case the order, of which a copy was annexed to the complaint, adjudged that Cummiskey was guilty of a contempt in having willfully disobeyed the order to submit to examination, and that for such contempt the fine wras imposed.
It appears here, exactly as it did in the Post case, that is, by the order adjudging the party in contempt, that there were two acts to be performed, viz., submission to examination and the payment of the fine ; and unless we refuse to adopt the views of the court in the Post case, both grounds should have appeared in the commitment. Under that authority we cannot do otherwise than hold that-the order in the present case, to use the language of the court, was “ fatally defective ” and that the sheriff was justified in discharging Cummiskey when he did.
The judgment should be reversed, and as the error is of such a vital character that it cannot be obviated on a new trial, judgment ordered for the defendant, with costs., (Goodwin v. Griffis, 88 N. Y. 629, 640).
Judgment affirmed, with costs.