The action is in replevin to obtain possession of twelve Liberty bonds claimed to be the property of the plaintiff, and which the plaintiff alleges are wrongfully detained by the defendant. On May 17, 1921, at a Special Term of the Supreme Court, Part I, held in and for the county of New York, an order was granted requiring the defendant, pursuant to section 717 of the Code of Civil Procedure, to deposit with the New York county clerk, within fifteen days after the service of said order with notice of entry thereof, subject to the further direction of the court, the twelve Liberty bonds particularly described in said order, and which are the subject of this action. The defendant refused to comply with said order, and on November 9, 1921, an brder was granted by the Special Term adjudging the defendant guilty of willful contempt of court in having knowingly and willfully disobeyed the said order of this court made and entered herein on the said 17th day of May, 1921, and which required the deposit, within fifteen days from the date of the service of said order with notice of entry thereof, with the clerk of this court pending the determination of the action, the said twelve Liberty bonds, and in and by said order of November 9, 1921, the said defendant was ordered committed by the sheriff of the said county of New York to the county jail in said county, to be there detained until the said defendant should comply with the provisions of said order of May 17, 1921, and deposit or cause to be deposited with said clerk the bonds mentioned in said order.
The defendant claims to have complied with said order of November ninth, and to have deposited with the county clerk the bonds in question as directed by the order of May 17, 1921. Alleging compliance with said order, the defendant then applied for an order vacating the order of the Special Term of November 9, 1921, adjudging him to be in contempt of court. This application, coming on to be heard, was denied by the order appealed from. Upon the hearing of the application to vacate the order adjudging the defendant in contempt of court, the defendant claimed that he had complied with the order for the deposit of said bonds, and that, therefore, the order which had adjudged him in contempt should be vacated. It was disputed by the plaintiff that the defendant had complied with said order, the plaintiff claiming that the bonds had been delivered minus certain coupons, which had been removed therefrom by the defendant while said bonds were in his possession or under his control. The learned justice presiding at the Special Term thereupon offered to hear the parties as to whether or not the defendant had, in fact, complied with the order of May 17, *3251921, and as to whether he should be purged of his contempt, and offered to hear arguments upon the merits, but the defendant refused to discuss the same and insisted that the order adjudging him in contempt should be vacated.
I think the court very properly denied defendant’s application to vacate. It was a disputed question as to whether or not the defendant had, in fact, purged himself of his contempt of the order requiring the deposit of said bonds. No appeal was taken by the defendant from the order of the Special Term adjudging him in contempt. Instead, he moved to vacate said order upon the ground that he had obeyed the order of May 17, 1921, and he has appealed from the order of the Special Term denying his application to vacate the contempt order. Under such circumstances, the court could do nothing but deny the application to vacate, leaving the defendant to make a proper application to be purged of his contempt.
The order appealed from should be affirmed, with ten dollars costs and disbursements.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.