On the 9th of November, 1921, the court made an order granting plaintiff’s motion on notice to the defendant to have him adjudged in contempt for failing to obey the order of May 17, 1921, requiring *323him to deliver the bonds to the clerk of the court, and it was ordered that he be committed to the county jail until he complied with the order, and that a warrant for such commitment issue unless within two days after the service of a copy of the order on his attorney he deposited the bonds as required by the order of May seventeenth. An affidavit made by the defendant was presented in opposition to the motion for the order adjudging him in contempt and in it he states in substance that the plaintiff for a good and sufficient consideration sold, assigned and transferred the bonds to him and that he in good faith, and believing his title was unassailable, prior to the commencement of this action, exercised his right as such owner and assigned and transferred the bonds and parted with possession thereof and was, therefore, unable to comply with the order of May seventeenth; that he has a good defense to the action, and took an appeal from the order of May seventeenth, which is pending and undetermined. (See 201 App. Div. 315.) The defendant did not appeal from the order adjudging him in contempt, but to avoid the issue of a warrant for his arrest thereunder he induced his wife, to whom he claims to have given the bonds, to consent to have the bonds deposited with the clerk of the court, and she accompanied him to the clerk’s office and delivered them to the clerk for that purpose. The defendant thereafter, on the 23d day of November, 1921, obtained an order to show cause why the order adjudging him in contempt should not be vacated. He also prayed generally for other and further relief, but that is the only specific relief demanded, or, so far as appears, asked for on the motion. The defendant thus, in effect, acquiesced in that part of the contempt order which required a compliance with the order of May seventeenth, and by the co-operation of his wife he was enabled to comply therewith; and by the motion he sought to have the adjudication adjudging him in contempt vacated. I am of opinion that the motion should have been granted, for regardless of the merits of his appeal from the order of May seventeenth, he had complied therewith under duress of the contempt order and the object of the motion to have him adjudicated in contempt had been accomplished. If the order adjudging him in contempt had been vacated, that would not have entitled him or his wife to a return of the bonds. He would only be entitled to that relief if successful on his appeal from the order requiring that they be delivered to the clerk.
The order should, therefore, be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.
Dowling, Smith and Greenbaum, JJ., concur; Merrell, J., dissents.