party to an action or special proceeding brought in court or before a judge or referee."

The misconduct alleged in the case cited, was the disobedience of an attorney to an order directing him to deposit certain moneys with the clerk of the court, and the proceeding was instituted under title 3 of chapter 17 of the Code of Civil Procedure, to punish the attorney for a civil contempt. But the suggestion has been made that a proceeding to enforce the payment of alimony, although regulated by that title, is not really a proceeding to punish for contempt at all; and hence that the decision in the Matter of Swenarton v. Shupe, supra, is distinguishable from the present case on that ground. I cannot acquiesce in this view.

It seems to me that the non-payment of alimony is a contempt punishable civilly under the third subdivision of § 14 of the Code, which confers upon a court of record the power to punish "a party to the action or special proceeding, an attorney, counsellor or other person for the non-payment of a sum of money ordered or adjudged by the court to be paid, in a case where by law execution cannot be awarded for the collection of such sum." Other provisions of the Code might be cited to show that such a proceeding as that now before us is in the strictest sense a proceeding to punish for contempt; but it will probably be sufficient to refer to the amendment of § 111, which was made in 1886. Laws 1886, chap. 672. That section, as amended, provides that no person shall be imprisoned within the prison walls of any jail for a longer period than three months under an execution or any other mandate against the person to enforce the recovery of a sum of money less than $500 in amount, or under a commitment upon a fine for contempt of court in the non-payment of alimony or counsel fees in a divorce case, where the amount so to be paid is less than the sum of $500."

The language which I have emphasized is a recent legislative interpretation of the meaning of the several provisions of the Code relating to proceedings to enforce the payment of alimony, 1773 and 88 2266 to 2291, and would seem to leave no room for doubt that such proceedings are proceedings to punish the party for contempt of court.

And this has apparently been the view of the general term of this department, which has twice applied the doctrine of the Mutter of Swenarton v. Shupe to proceedings to enforce the payment of alimony. Sandford v. Sandford, 40 Hun, 540; 2 N. Y. State rep., 133; Mendel v. Mendel, 4 id., 556. In both of these cases it was held to be a fatal defect that the order contained no adjudication that the conduct of the party had been such as to defeat, impair, impede or prejudice a right or remedy of the party affected by it.

I should deem these three decisions controlling and should think that they required the release of the relator on writ of habeas corpus, were it not for the case of Fischer v. Langbein, 103 N. Y., 84; 2 N. Y. State Rep., 768. The opinion of the court of appeals in this case seems to overrule in effect the decision of the N. Y. STATE REP., VOL. XXXII. 127

general term in the matter of Swenarton v. Shupe, supra, and in the other cases asserting the jurisdictional necessity of an express adjudication that the contempt charged has defeated, impaired, impeded or prejudiced a right or remedy of a party litigant. In Fischer v. Langbein neither the order nor the commitment, as they appear in the appeal papers, Court of Appeals Cases, June, 1886, contain any such adjudication, and yet the court expressly upheld the commitment as containing all that the law required, and the result reached in the opinion upon the consideration of the whole case necessarily also implied that the order, although erroneous, was not so defective in any matter of substance as to render it void. In that case it was said that the order and commitment "presented all of the facts upon which the judgment of the court in awarding the commitment was based," and the same seems to be equally true in the case at bar.

From this decision of the court of last resort it follows that the defect in the proceedings against the relator is not of such a character as to entitle him to relief by habeas corpus, and the order of the court below dismissing the writ should, therefore, be affirmed.

THE FIRST NATIONAL BANK OF JERSEY CITY, App'lt, v. FREDERICK B. BARD, Individually and as Assignee, et al., Resp'ts. (Supreme Court, General Term, First Department, Filed July 18, 1890.) 1. APPEAL-CASE.

Where the case on appeal does not state that it contains all the evidence, the appellate court cannot inquire whether the findings of fact are against the weight of evidence.

The single circumstance that a judgment is confessed at or about the same time that the debtor executes a general assignment does not, of itself, irrespective of the other facts connected with the transaction, necessarily require the conclusion that the confessed judgment is a part of the assignment, and hence intended to defraud his creditors.

APPEALS by plaintiff from special term judgments, in four ac tions tried together by consent, so far as the decrees sustain the validity of certain confessed judgments in favor of the defendants Kenyon, Carter, Shepard and Walker.

Hamilton Wallis, for app'lt; Lucien Oudin, for resp❜t Kenyon Warren W. Foster, for resp'ts Carter, Shepard and Walker.

BARTLETT, J.-The omission to insert in the case on appeal any statement that it contains all the evidence prevents us from considering the interesting and important points made in the argument of the appellant against those portions of the judgments which are appealed from. Porter v. Smith, 107 N. Y., 531; 12 N. Y. State Rep., 479. The appellant attacks the confessed judg ments in favor of the several respondents on the ground that they, together with the general assignment to the defendant Bard, constituted a single instrument executed in pursuance of one scheme or device to withdraw the property of Clarke, Radcliffe & Co. from the reach of the creditors of that firm, and thereby hinder, delay

and defraud such creditors. But the trial court refused to find this proposition, and on the contrary did find as matter of fact that the judgments were not confessed for the purpose of hindering, delaying or defrauding creditors, but were in all respects fair and just. The single circumstance that a judgment is confessed at or about the same time that the debtor executes a general assignment does not of itself, standing alone, and irrespective of the other facts connected with the transaction, necessarily require the conclusion that the confessed judgment is a part of the assignment. All that White v. Cotzhausen, 129 U. S., 329, 344, decides is that under the proof in that case the conveyances, bill of sale, confession of judgment and other transfers made by the debtor, pursuant to an understanding previously reached, were in effect a preferential assignment forbidden by the laws of Illinois. There also was an express finding that the confession of judgment was made without adequate consideration, and with intent to hinder, delay and defraud creditors, both of which propositions are negatived in the case at bar. We cannot say that the findings of fact made by the trial court are wholly without support in the proof, nor can we inquire as to whether they are against the weight of evidence without being assured that all the evidence is before us. Our attention is called to the absence of the requisite certificate by one of the counsel for the respondents, and the omission may not be disregarded.

For these reasons the judgments should be affirmed, with costs of one appeal.

VAN BRUNT, P. J., and BARRETT, J., concur.

THE PEOPLE, Resp'ts, v. JOHN FITZPATRICK, App'lt. (Supreme Court, General Term, First Department, Filed July 18, 1890.) KIDNAPPING-WHAT ACTS WILL NOT CONSTITUTE.

The making of a promise of work at a specified compensation, outside of the state, which the promisor knows will not be kept, so far as the rate of compensation is concerned, is not an inveiglement within the legal significance of that term, so as to subject the party making it to punishment as a kidnapper.

APPEAL from a judgment of the court of general sessions upon a conviction of the crime of kidnapping.

William F. Howe, for app'lt; McKenzie Semple, for resp'ts.

BARTLETT, J.-The defendant was indicted for kidnapping David Kennedy. There were two counts in the indictment. The first count need not be considered, as the district attorney virtually abandoned it upon the trial. The second count charges that the defendant on the 9th day of May, 1889, "did feloniously and wilfully inveigle and kidnap one David Kennedy, with intent to cause him, the said David Kennedy, to be sent out of the state, to wit, to the state of Yucatan, in the republic of Mexico, and to be there kept and detained against his will."

According to the testimony of the complainant, he met the defendant on May 9, 1889, at Ward's pier, in this city, at which the

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steamship City of Washington was lying at the time. plainant went there in consequence of some statement, not dis closed by the evidence, which had been made to him by a stranger. He asked the defendant "what sort of a job it was,' presumably referring to some job which he had heard of from the stranger. Fitzpatrick said "it was a job in Mexico, thirty-five dollars in American dollars and board a month." He also said it was a good job, and things were cheap there. The work was work on a railroad. The complainant further testified in substance that the defendant said that "the company" at Progreso, in Yucatan, was to pay the thirty-five dollars a month in American money and provide the board, when Kennedy and the other laborers who went out at the same time should arrive at their destination; and that Fitzpatrick said there was a job at Progreso waiting for them, and that Progreso was a healthy place.

After talking with the defendant, Kennedy signed a paper at his request, on which there were already twenty or thirty names, and then went on board the steamer. There is some testimony to the effect that subsequently, when the complainant was coming down the gang-plank and told the defendant that he was coming ashore for tobacco, Fitzpatrick lifted his stick and spoke to him threateningly, telling him to get back into the ship; but this becomes unimportant, as the district attorney did not insist that Kennedy was sent out of the state by violence, and the learned trial judge so instructed the jury in his charge.

The complainant and his companions went to Progreso on the steamer. It is not necessary to review in detail their unpleasant experiences in Yucatan. After some delay they were given work in handling freight on a railroad, for which they were paid at the rate of a Mexican dollar a day, without board, instead of at the rate of thirty-five dollars a month in American money, with board. The price of food appears to have been so high that it was difficult, if not impossible, to make a fair living on such wages; in the opinion of the complainant, the climate was unhealthy; and after working for a Mexican dollar a day at Merida for about two weeks, and boarding himself, he left the capital of Yucatan and managed to make his way back to New York.

As

The defendant, in testifying in his own behalf, denied having told Kennedy or anybody else that the men would receive thirtyfive dollars a month in American money, or having said anything about their board or in reference to the climate in Yucatan. to the making of these statements, however, the verdict of the jury is against him, and the case must be disposed of in this court on the assumption that he made them. I am also of the opinion, after reading all the testimony through very carefully, that it affords ample support for the inference, which must have been drawn by the jury, that the defendant knew the complainant would not find work on a railroad in Yucatan at the promised compensation, and for the further inference that the defendant's purpose in making the statements which he did make was to induce the complainant to go out of the state.

Assuming all these facts, the question is whether the act of the

defendant constitutes the crime of kidnapping under the provisions of the Penal Code.

The defendant was convicted under the first subdivision of § 211, which declares that any person is guilty of kidnapping, who wilfully "seizes, confines, inveigles, or kidnaps another with intent to cause him, without authority of law, to be secretly confined or imprisoned within this state, or to be sent out of the state, or to be sold as a slave, or in any way held to service or kept or detained, against his will." In view of the proof, the verdict must have been based on a finding that Fitzpatrick inveigled Kennedy for the purpose of causing him, and thereby did cause him, to be sent out of the state against his will; and if the evidence will support such a finding, the conviction will have to be sustained.

In the case of the People v. De Leon, 109 N. Y., 226; 14 N. Y. State Rep., 847, it was said that an inveiglement, in the ordinary sense of the word, implies the acquiring of power over another by means of deceptive or evil practices, not accompanied by actual force; and it was held that the defendant had inveigled the complainant within the kidnapping statute when he procured her consent to go to Panama, upon the pretense that honest employment had been secured for her there, while in fact his secret design was that she should become an inmate of a brothel. But every deceptive or evil practice does not constitute an inveiglement; and I think a material distinction exists between the case at bar and the case of the People v. De Leon, supra, in respect to the nature of the deception. There the promise of honest employment was not only to be broken, but a distinct affirmative wrong was to be done the complainant by forcing her into a life of prostitution in a foreign land. Here, the facts are very different. The complainant was promised honest employment and he got it. The deceptive part of the promise, which was not kept, was the assurance that he should be paid $35 a month in American money and receive his board, instead of which his wages were so meagre that he could only just live on them. I attach little importance to the alleged false representations concerning the climate of Yucatan and the prices there, since it is plain enough that they were not the procuring cause of the complainant's consent to go thither.

He was induced to go by the promise of work at a specified compensation, and we are called upon to determine whether the making of a promise of this kind, by a person who knows it will not be kept so far as the rate of compensation is concerned, is an inveiglement within the legal signification of that term, so as to subject the person making it to punishment as a kidnapper.

I do not think it is. In the case of Ranney v. The People, 22 N. Y., 413, 417, it was said that a false representation essentially promissory in its nature had never been held to be the foundation of a criminal charge. In effect, the defendant's statements to Kennedy about work at Progreso were merely promises to give him work when he arrived at that port. Their true character is not changed by reason of their form. Saying to the complainant that there was a job waiting for him in Yucatan, was only another way of promising him employment if he would go to that coun