Dowling, J.:
This is a proceeding originally brought to punish the defendants for criminal contempt for the willful violation of an injunction order. After a trial before a referee the court adjudged certain of the defendants guilty, among them Patrick H. McCormick and Vincent J, Costello, who were directed to pay tines of $250 each and
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to be imprisoned for twenty days. Appeals to this court and to the Court of Appeals .resulted in the affirmance of said order. (132 App. Div. 921; 196 N. Y. 571.)' The remittitur from the Court of Appeals was filed, and the respondents filed a petition with the court for the suspension of the sentence of imprisonment, in which they expressed their regrets for the acts adjudged to have been unlawful, averred their good faith and lack of intention to disobey the law, and asked leave to purge themselves of the contempt of which they had been found guilty.. They set forth at length the reasons why the .clemency of the court should be extended to them. These appeared so satisfactory that the order appealed from was made by the justice who originally adjudged them "in contempt wherein upon the .payment of their fines he directed that the issue of process for the imprisonment of the respondents be stayed.. The questions presented here are whether the court had jurisdiction to make the order sought to be reviewed, and, if so, whether its discretion was properly exercised. At the outset it may be said that this is not an attempt to add any new and independent directions to the judgment of the Court of Appeals, nor to take anything away therefrom. That court, as well as this, simply determined that upon the facts presented the respondents had been guilty of criminal contempt. The question- of the adequacy or severity of the punishment inflicted was never raised. Now, after a final determination of the issue of whether a contempt was committed, the court which originally made such declaration and which alone had power to punish the offense, in the exercise of its., discretion declares, that .the interests of justice will be best served by compelling the payment of the fine alone, and by staying the imposition of the further penalty. It in no way alters the determination that a' criminal contempt had been committed. It is well settled that no court can punish a contempt of another -court, and that the court whose order or authority is defied alohe has power to punish it or to entertain proceedings- to that end. (Rapalje on Contempt, 15.) After an adjudication one adjudged guilty of contempt will generally be- allowed to purge the contempt by performing the act required, or undoing or reversing the acts constituting the contempt, or,.where the act has caused injury to a party to the suit, by making reparation to the injured party. (9 Cyc. 59; People Page 295
ex rel. Baldwim, v. Miller, 9 Misc. Rep. 1; People ex rel. Taylor v. Seaman, 8 id. 152.) Even where one is imprisoned for contempt, the court may at any time, in its discretion, either on its motion or. upon proper application, inquire into the question of the ability of the offender to obey the order, and if satisfied of the inability of the offender to comply he may be discharged. (9 Cyc. 60; Valentine & Co. v. Mandel, 11 N. Y. Supp. 718; Ryer v. Ryer, 67 Iiow. Pr. 369; and see Judiciary Law [Consol. Laws, chap. 30; Laws of 1909, chap. 35], § 775.) This application, therefore, is in effect one to be allowed to purge themselves of their contempt by respondents, is addressed to the discretion of the court which alone had power to punish for the contempt and to allow its being purged, and whose discretion and authority were in nowise destroyed or 'abridged by the affirmance upon appeal of its own determination. Having been satisfied that it was proper that the full enforcement of its own mandate should be stayed, and no valid reason appearing why its discretion should not be exercised to that end, the court was within its rights in so ordering.
The order appealed from should be affirmed, with ten dollars costs and disbursements.
Ingraham, P. J., concurred; McLaughlin and Clarke,' JJ., dissented.