(dissenting):
The court at Special Term, of course, had discretion as to the punishment to be imposed upon the respondents for their willful disobedience of the court’s order, but that discretion was exercised Avhen the original order was made declaring them to be in contempt and imposing the fine and imprisonment. They appealed from the order to this court, and it was affirmed, and then they appealed to the Court of Appeals, where the détermination of this court was affirmed. (See 132 App. Div. 921; 196 N. Y. 571.) After the appeal had been taken and. the order affirmed by the -Appellate Division and the Court of Appeals, the power of the Special Term *296over or concerning it was gone. When the remittitur of the Court of Appeals came down, the Special Term could do only one thing, viz., make the judgment of the Court of Appeals the judgment of the'Supreme Court, to the end that the order might be “ enforced-according to law.” (Code Civ. Proc. § 194.) The Special Térm had no discretion. It was bound to obey the directions contained in the remittitur. and enforce the order in the manner and to the extent in which it had been affirmed by the Court of Appeals. (Matter of Protestant Episcopal Public School, 86 N. Y. 396; Wilkins v. Earle, 46 id. 358; Matter of Hopkins, 95 App. Div. 57; Zapf v. Carter, 90 id. 407; Parish v. Parish, 87 id. 430; Matter of Griffin, 98 N. C. 225.)
In the case last cited it was expressly held that after an order fining the defendant for contempt had been affirmed on appeal the court below had no.power to remit the fine.
This must be so if the rights of parties are ever to be settled by an adjudication of the court. (Meldon v. Devlin, 39 App. Div. 581.) The practice here adopted would practically destroy the efficiency of an appellate court. If the Special Term had authority to modify or stay the enforcement of the order in any particular, then it could have remitted both the fine and the imprisonment, and I do no! believe that an order of the court of last resort can be.thus nullified or destroyed. The appeals determined that the respondents were not only guilty of contempt,'but that the punishment therefor had been properly and legally imposed. It might just as well be claimed that because in an equitable action costs aré awarded in the discretion of the court, the trial court, after a judgment including costs has been affirmed by the. Court of Appeals,’ can perpetually stay the enforcement of the judgment to the extent of such costs.
This is not a case of civil contempt and for that reason it seems to me the reasoning in the prevailing opinion, based upon the theory that a party may purge himself of contempt, is unsound. Besides, we have just decided, in Schmohl v. Phillips (138 App. Div. 279) that the provisions of section 775 of the Judiciary Lawy(Consol. Laws, chap. 30 ; Laws of 1909, chap. 35) cannot be invoked to prevent imprisonment for contempt, but' only to relieve a party in prison. The extent of the punishment, in view of' all the facts and circumstances, was fully considered by the Special Term when the *297original order was made, and that order having been affirmed by the Court of Appeals, I am of the opinion that the Special Term had no power or authority to stay the enforcement of the order as it was remitted by the Court of Appeals.
For the foregoing reasons I am unable to concur in the opinion of .Mr. Justice Dowling. I think the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to remit the imprisonment denied, with ten dollars costs.
Olaeke, J., concurred.
Order affirmed, with ten dollars costs and disbursements.