41 N.Y.S. 132 | N.Y. App. Div. | 1896
The defendant was in contempt for not obeying the order of August twentieth, if she refused, or without sufficient excuse neglected, to obey it, after it had been duly served upon her, otherwise not. (Code, § 2457.)
Conceding that she was “ physically and mentally able to attend and be examined ” on the 21st of August, as is found by the referee, yet we think the record discloses other facts which furnished to her a sufficient excuse for not so doing.
The order, which was served upon her at half-past ten o’clock in the forenoon, required her to appear before the referee in Saratoga Springs at two o’clock in the afternoon of that day. She was alone in the house when it was served. Her htisband and son had both left that morning at about seven o’clock to be absent for the day. The son had with him the horse which the defendant was in the habit of driving and the only single wagon that was then available for her use. Such residence was some three miles from the village where she was required to attend, and it is very clear that in the condition of health in which she then was, it would be unreasonable to require her to have walked that distance.
Such was the situation which confronted her when called upon to appear in Saratoga Springs at two o’clock, that afternoon. She had no means of getting there except by walking; no one to leave in charge of the house and premises, and no one to send to represent her or to explain her absence.
These facts clearly appear from the record before us, and in our judgment they form a sufficient excuse for her not appearing as required by the order. Had the order been served the day it was granted, and had the defendant been given an opportunity to prepare over night for her absence the next day, a different case would be presented. Then means of conveyance could have been arranged for,, and other members of the.'. family could have remained in. charge of the house. But when the moving party in such proceedings attempts to compel the attendance of the debtor on as short a notice as was given in this ease, he is very likely to meet with a condition of affairs that will excuse so prompt an attendance, and particularly when the party summoned is a woman in charge of a household, and who may reasonably ask for some assistance and preparation
We do not discover any willful refusal on the defendant’s part to obey the order. Pier claim that she was not in a condition of health' to be examined, although not sustained by the referee, does not indicate such a refusal. Her attending physician so advised her. He' also so testified on the hearing, and the evidence repels the idea that he was acting in collusion with her to avoid her examination. Our conclusion, therefore, is that' the defendant neither refused, nor did she without sufficient excuse neglect, to obey the order of August twentieth. She should not, therefore, have been adjudged in contempt, and the order in that respect was erroneous.
This conclusion renders it unnecessary to pass upon the several objections which the appellant makes to the bill of costs and expenses charged against her. Such costs have, however, been made up with such an utter disregard of the rules regulating the same that we deem it necessary to say that no inference of an approval should be drawn from our omission to specifically point out their numerous errors. It would be difficult to find in the statute any authority for taxing a large majority of the items which the respondents have incorporated into their so-called bill of costs, and had we not reached the conclusion that the defendant should not have been held for contempt, we would have found it necessary to strike out a very large y>art of the fine which, under the name of “ costs and expenses,” has been imposed upon her.
The objection made by the respondents’ counsel that no appeal lies from such an order is not well taken. This order is clearly one of those from which an appeal is allowed by section 1356 of the Code of Civil Procedure, and the provisions of section 2433 of that Code are not applicable to it.
All concurred.
Order appealed from, so far as it holds that the defendant was ■ guilty of contempt and imposes a fine upon her and requires her to pay the costs therein specified, reversed, with costs, with leave to the plaintiffs to apply to the justice who granted the original order of August 20, 1895, to fix the time at which the defendant shall appear before the referee pursuant to such order.
