106 N.Y.S. 532 | N.Y. App. Div. | 1907
The order adjudging the appellant guilty of contempt was made on account of his failure to appear for examination at the time fixed by the order of the Special Term, the validity of which has been sustained on his appeal therefrom (121 App. Div. 761), argued and decided herewith. It is unnecessary, therefore, to consider further the objections to the validity of the order as they are considered and overruled-in the opinion delivered on that appeal. The learned counsel for the appellant contends that the order adjudging his client guilty of contempt is void, for the reason that the moving papers did not show personal' service of the order fixing a new date for the examination upon the party. It must now be regarded as settled by judicial authority in this State that a party may not be punished for contempt on account of his failure to obey an order which has not'been personally served upon him, and if the original order for the. examination of the appellant had not been personally served upon him and witness fees paid or tendered, he could not be punished for contempt. (Tebo v. Baker, 77 N. Y. 33; Hall v. Gilman, 87 App. Div. 248.) I am of opinion, however, that the adjudication is based, not upon the order of the Special Term fixing a new date for the examination, which was served upon the attorney for the appellant only, but upon- the original order for his examination, which was personally served. After the service of the original order it appears that appellant left the State, and so far as the record shows he has not since returned. It is evident, therefore, that if the contention made by the learned counsel for the appellant is sustained, a party duly served with an order for his examination, has only to obtain a stay of proceedings for a period beyond the date fixed for the examination and then depart from the State, and lie will thereby deprive the party in whose favor the- order for the examination' was granted' of the right to any examination in the action. If the courts or judges cannot retain jurisdiction over parties in such circumstances, then it is inevitable that injustice must be done either by the courts refraining from interfering with orders for examinations, no matter how meritorious an application for a stay may appear to be, lest on the hearing the original order may be sustained, or by staying examinations where it is made to appear on an ex gparte application, as is
The appellant relies upon section 802 of the Code of Civil Procedure. That section is in article 3 of title 6 of chapter 8 of the Code of Civil Procedure, containing the general provisions with respect to the service of papers and providing, among other things, for the service of papers in an action, after the appearance of a party, upon the attorney, and it provides as follows: “ This article does not ■ apply to the service of a summons or other process, or of a paper to bring a party into contempt, or to a case where the mode of service is specially prescribed by law.” The contention is that both the order fixing the date for the examination and the order to show cause why he should not be punished for contempt, which was likewise served on the attorney only, are papers “ to bring a party .into contempt ” within the meaning of this section, and that no other provision of the Code authorizes service thereof upon the attorney. Undoubtedly the service of the original order was the service of a paper to bring the party into contempt within the meaning of this section, because it was the foundation of the proceeding for punishment for contempt, but the order fixing a new date for the examination was a step, rendered necessary by the action of the appellant in obtaining the stay, essential to restore to plaintiffs their right to exlamine the appellant under the original order, and the order to show cause is not, strictly speaking, an order to living a party into contempt, but an order to l>ring a party into court to answer for a contempt already committed. It is to be borne in mind that this •contempt proceeding was instituted to enforce an order made in the action and for the benefit of the plaintiffs. It is, therefore, a proceeding in the action, as has been expressly held by the Court of Appeals in Pitt v. Davison (37 N. Y. 235). The provisions of section 802 are not new. They have been considered by the courts in many cases, and I think the rule- may now be regarded as well sustained by authority that where the order which has been disobeyed has been duly personally served upon a party to an action, any sub-* sequent order in the action to continue the effect thereof, or to punish the party for violating tlie same, may be served upon the attor
The appellant attempted to excuse his failure to appear for examination on the ground of his absence in Mexico and illness. . The court in affording him an opportunity to purge himself of the contempt, granted him all the consideration' to which in any event he was entitled, for it plainly appears that he has acted in bad. faith in-opposing and delaying the examination.
It follows that the order should be affirmed, with ten dollars costs and disbursements.
Patterson, P. J., Ingraham, Clarke and Houghton, JJ., concurred.
Oi'cter affirmed, with ten dollars costs and disbursements.