(U)pon a full presentation of defendants' "proof", it is the view of this Court that there is absolutely no basis for a stay insofar as the newly-discovered evidence is supposed to support it. All that the defendants have presented is a series of allegations that do not lead this Court to the conclusion that the instant motion should be granted. In point of fact, after reviewing the "proof" adduced by defendants, it is the belief of this Court that the instant motion is merely another ploy utilized by Overmyer in an attempt to avoid the full force and effect of a judgment entered in the Court as well as the several orders emanating thereafter.

Unpublished opinion in Fidelity and Deposit Company of Maryland v. Daniel H. Overmyer et al., Index No. 5920/74 (Sup.Ct.N.Y.County, June 23, 1976) at 5. After hearing argument on both sides, Justice Tyler denied the motion to reargue, vacated the stay and once again directed that Overmyer appear for examination. The sheriff of any county was authorized to apprehend Daniel Overmyer and compel his attendance for examination at the courthouse on June 29, 1976.

In the same opinion of June 23, 1976 Justice Tyler commented:This court finds the litany of evasion and noncompliance in which the defendant judgment debtor has engaged to be absolutely incredible. The utter disrespect which Overmyer has shown, not just for the prior order of this court, but for the entire system of jurisprudence by which this court and this society operates is reprehensible.

The efforts of the Overmyers to delay or defeat the day of judgment however did not end. On June 29, 1976 Daniel and Shirley Overmyer brought an action in the Southern District of New York seeking injunctive relief and damages against Fidelity, the State of New York, Justice Tyler, Thomas J. Delaney, the Sheriff of Westchester County and Edward A. Pichler, the Sheriff of New York County. Plaintiffs requested the convening of a three-judge court to consider their constitutional claims which were that the New York statutes relating to civil contempt, N.Y. Judiciary Law §§ 756, 757, 765, 767, and 769-775, were invalid because they violated the Fourth, Fifth, Eighth and Fourteenth Amendments of the United States Constitution. The complaint requested that permanent and preliminary injunctive relief be granted against the defendants to prevent enforcement of the contempt statutes. Pending the convening of the three-judge court a temporary restraining order was requested to be issued for the same purpose. Plaintiffs' complaint also contained a pendent claim against Fidelity based on its alleged influence over Overmyer Inc.'s lawyers in the Texas action. Damages of $100,000 were requested.1

The action came before the Hon. Milton Pollack, United States District Judge for the Southern District of New York. In an opinion and order of October 18th, 1976 the trial court denied plaintiffs' motion for a preliminary injunction2 and granted Fidelity's motion to dismiss the complaint.3 This appeal followed.

We need not tarry long with the constitutional issues raised by the appellants. In the court below they relied upon Vail v. Quinlan, 406 F. Supp. 951 (S.D.N.Y.1976), the decision of a three-judge court finding the New York State contempt law unconstitutional. Judge Pollack found Vail to be inapposite since that case involved ex parte contempt findings resulting in imprisonment against pro se debtors. In the Overmyer case all of the motions were noticed and the plaintiffs were represented by counsel on all occasions. Moreover, the order here which Overmyer sought to enjoin was pursuant to N.Y.C.P.L.R. § 2308(a) directing the sheriff to bring Overmyer to be examined under oath; he was never threatened with incarceration. No attack was levied against this section but rather against §§ 756, 757, 765, 767 and 769-775 of the Judiciary Law which would have come into play if the New York court had decided to imprison Overmyer for contempt. In any event, Vail v. Quinlan, supra, was reversed by the Supreme Court, sub nom. Juidice v. Vail, --- U.S. ----, 97 S. Ct. 1211, 51 L. Ed. 2d 376 (1977) which held that the district court should have abstained under the doctrine of Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971). The Court found "(t)he contempt power lies at the core of the administration of a State's judicial system". --- U.S. at ----, 97 S. Ct. at 1217. Therefore, the Court concluded that granting injunctive relief would constitute an improper interference with the state system prohibited by Younger. The Court held that for a federal court to abstain it was only necessary for the plaintiffs to have had the opportunity to raise the federal issue before the state court; it was not necessary that a hearing be held if they failed to employ available procedures. Overmyer had ample opportunity to raise his federal claims before the state court. Thus, even if his constitutional claims had any merit, we could not consider them. Since there is no basis for diversity jurisdiction, diversity not having been alleged, the pendent claim was properly dismissed.

Appellants admit, as they must, that their constitutional argument is foreclosed here in light of Juidice v. Vail, supra. However they argue that this court should "correct" Judge Pollack's opinion since his holding that the constitutional issues had been decided against them in the state court barred their adjudication in the federal court Thistlethwaite v. City of New York, 497 F.2d 339 (2d Cir.), cert. denied, 419 U.S. 1093, 95 S. Ct. 686, 42 L. Ed. 2d 686 (1974). There is no need for this court to take such action. If the appellants are correct in their position that the federal constitution questions were never litigated in the state courts, surely the state courts are competent to make that determination without reference to or limitation by the federal opinion appealed from.

28 U.S.C. § 1912 and Federal Rule of Appellate Procedure 38 authorize this court upon a determination that an appeal is frivolous to award just damages and single or double costs to the appellee. Teledyne Industries, Inc. v. Podell, 546 F.2d 495 (2d Cir. 1976). The history of this litigation in the state courts and its continuation in the federal court, even before the Supreme Court had demolished the only semblance of support plaintiffs could muster, serves to illustrate that this appeal was and is frivolous. This court has been utilized, as were earlier the state and district courts, as a device to frustrate the collection of a judgment of a state court. We assess the appellants double costs and in addition $2000 in attorneys' fees.4 The mandate shall issue forthwith and shall not be stayed by the filing of a petition for rehearing.