Does there an appeal tie from the order complained of, to this court ?
It is an order adjudging the defendant in contempt, and is made before final judgment in the action.
In the
N. Y. and N. H. R. R.
v.
Ketcham
(
. From this last order the defendants appealed to this court. It was here held that it was not a final order affecting a substantial right in a special proceeding; that it was made in the action, and though it might affect a substantial right, it was not a final order, but one preliminary to punishing the party alleged guilty of a contempt. The appeal was dismissed. There is, perhaps, an intimation that if it had been a final order, the appeal might have been entertained.
In
Pitt
v.
Davison
(
In
Batterman
v.
Finn
(March, 1869,
In
Sudlow
v.
Knox
(decided in June, 1869, reported in 7 Abbot, Pr. Rep., N. S., 411), a judgment had been recovered in a former action against the defendant; and in proceedings supplementary to execution therein, the plaintiff in this action had been appointed receiver. He had brought an action against the defendant which was still pending, and a reference had been ordered to take and state an account. For a refusal of the defendant to leave Ms books of account with the referee, the defendant was by the Special Term, adjudged guilty of a contempt, and fines were imposed upon him, and he was ordered committed until he produced and left the books with the referee.
*46
On appeal to the General Term, the order, with a modification of the amount of fine was affirmed. From the order of General Term an appeal was taken to this court. This court, composed of the'same judges who had given the judgment in
Batterman
vi
Finn, swpra,
found presented to them the facts which it had, in that case intimated, would require a different adjudication; and it held upon them, that the order of the Special Term was one not made in the action, but was a final order, made in a special proceeding, affecting a substantial right, and was appealable to this court, and reviewed the order and affirmed it. The real distinction in the cases would seem to rest upon this, that in
N. Y. and N. H. R. R.
v.
Ketchum,
and in
Batterman
v.
Finn,
the order appealed from was preliminary, while in
Sudlow
v.
Knox
it was final. This remark will not apply to
Pitt
v.
Davison.
There is, perhaps, a want of perfect harmony in these eases. But the decision in
Sudlow
v.
Knox
was evidently the result of deliberate consideration, and is sustained by the reasoning of the opinion delivered. It pointed out a just and reasonable practice in such- cases; and having been expressly followed in
The Erie Railway
v.
Ramsey,
It will be noticed, upon a reading of the ordér, that it does not, as to a part of the specified punishment, absolutely impose it upon the defendant. It is. an order, in the first part of it, that unless within ten days he complies with the order which he had refused to obey, and pay ten dollars cost, his answer should be stricken out, and the cause should proceed as if there were no answer, and that it be referred to a referee named to take proofs. The order, so far, is conditional. The punishment is not inflicted absolutely, but it is
*47
in Ms power to avert it; and if he does not avail himself of the condition, there must be proof put on file of Ms failure so to do, and another order of the court malting peremptory and absolute that which, by this order is but conditional. True, parties for the purposes of this appeal have stipulated that he has not availed himself of the condition. But that, though it may be proof to this court, is not yet proof to the court which made the order. And there is nothing to show this court that there has been an absolute and final order, which has actually imposed upon him the threatened penalty of striking out his answer and the like. (See
Adams
v.
Fox,
It is suggested that the order in that respect is appealable as falling within the last paragraph of sub. 4, section 11, of the Code, as amended in 1867 and 1870 (see People v. Auditor, etc., 1 Albany Law Jour., 60), as being an order affecting a substantial right and an order to strike out an answer. But there is the same difficulty here. The order does not strike out the answer. It is an order that the defendant is in contempt, and that he purge himself of that contempt and submit to the direction, and unless he does so, his answer be stricken out. The answer yet remains, for aught that appears, upon the record. It is not yet stricken out; and whether it will be or not depends upon further action of the court below. Won constat but that on an application for an order absolute to that effect somewhat may appear to the court and cause it to withhold such order. The defendant may not in advance ask the judgment of this court, whether the court below has the power to do what it has not yet done. The appeal from so much of the order cannot be entertained.
But the Special Term went further and ordered that in the meantime (i. e., until he complied with the former order, for disobedience of wliich he was in contempt), all proceedings *48 on the part of the defendant in the action, including his proceedings on his appeal taken from the former order to the General Term, be and the same were thereby perpetually stayed. This is in the view of a majority of this court an absolute and final order, and falls within the principle asserted in Sudlow v. Knox (supra). It is, therefore, as to so much of it appealable.
We have no doubt but that the Special Term had the general power to adjudge the defendant in contempt and to punish him therefor. It had jurisdiction of his person by the personal service upon him of the summons. The allegations of the complaint show a situation of the parties and an alleged cause of action which gave it jurisdiction of the subject-matter. (2 R. S., 146, § 50,
et seq.)
The matters set up in the answer to show want of jurisdiction and other defences are not yet conclusive. They form the issues in the cause, and are the matters to be tried and proven before the action is defeated. It is to put the plaintiff in the possession of means with which to prepare for a trial of them that the statute (2 R. S., 148, § 58) gives to the court the power which it has exercised in her behalf.
(North
v. North, 1 Barb. Chy. Rep., 241;
Purcell
v.
Purcell,
3 Edwards’ Chy. Rep., 194.)
*
It was for the Special Term to say, on all the facts shown to it, whether she should be furnished by the defendant with means to enable her to try these issues. The order made by it to that end is not before us for review. We must, for the purposes of this appeal, presume that it was right in its terms and directions.
(The People
v.
Spaulding, 2
Paige, 326;
The People
v.
Sturtevant, supra.)
It matters not that she has made an unsuccessful motion, for means to carry on
*49
another action seeking other relief in a court in another State. The order there denying her motion in that action is not an adjudication which bars an application here in this action. The Special Term having made the order and the defendant having on service thereof neglected to comply with it, he has been disobedient of the court and in contempt of it. The court had power to punish him therefor. (2 R. S., 534, § 1, sub.) This might be by fine or imprisonment, or both. (Id. and p. 538, §§ 20
ei seq.)
But it was not limited to this mode of enforcing its orders. Inasmuch as after the commencement of the action, he had gone out of the jurisdiction, it would not have availed to order him fined and committed. But it had control over its own proceedings and could refuse to the defendant the benefit of them, when asked as a favor, until he purged himself of his contempt.
(Ellingwood
v.
Stevenson,
1 Sandf. Ch., 366;
Johnson
v.
Pinney,
It is to be observed however, that in the cases cited, the disability to be heard in court was not a punishment inflicted ■¡upon the party in contempt, by the express terms of any *51 order or decree adjudging Mm in contempt. Being in contempt, he came before the court on motion or otherwise, and was met by an objection from his adversary, that for that reason he couM not be heard. In the case in hand, the disability to proceed on his appeal is a punishment inflicted aflirmatively and directly by order. But the Special Term got no right to inflict such punishment from the statute law. That provides for fine and imprisonment. If the Special Term had the ability to impose such punishment as it has, it found it in its inherent power as a court of equitable powers and jurisdiction. But as such, it could take no greater power than the settled practice of the court has established as belonging to it. And it will be seen from the cases cited, that the court has not exercised the power of preventing the party from moving to rid himself of the contempt adjudged by showing that the order was erroneously granted. It may be doubted whether the proper method of exercising this power of the court to secure obedience to its orders, is to impose in terms, and in advance of the asking the action of the court, a denial thereof. The practice seems to have been, when the party was in contempt to meet him with that fact, on his attempting to move in the action in any respect in which the court was wont to withhold its aid from a party thus placed.
It follows that the Special Term had no power to stay the defendant in his proceedings by appeal, to show that the order which he did not obey was erroneous. The orders of the courts below, so far as they direct a stay of the proceedings by appeal or otherwise of the appellant to rid himself of the contempt alleged, must be reversed. The appeal from so much of the order as directs the striking out of the answer, and the reference to take proof etc., must be dismissed, with costs to neither party.
All concur.
Ordered accordingly.
Notes
It was not intended to positively pass upon- the power of the court below to grant temporary alimony in this case, or in any case in which a marriage is denied and is not yet proven. All that is here held is, that the court below having passed upon the question and made an order in a case in which it had jurisdiction of the subject-matter and of the person, and made an order, it is contempt of court not to obey it as long as it is in force. The question of the power of the court below is more fully considered in Griffin v. Griffin, post 134.—[F.