In re Depue

95 N.Y.S. 1017 | N.Y. App. Div. | 1905

Smith, J. :

At the threshold of this appeal the respondent contends, inasmuch as the order of January 2, 1902, under which the relator was imprisoned, has been vacated and set aside as a part of the order here appealed from, that the right to detain the relator has necessarily ceased. This contention is undoubtedly sound provided only the county judge upon this application had the riglit to review the order which he had made punishing the relator for contempt and directing her imprisonment. Upon this writ, however, the equity of the order for imprisonment was not before the learned county judge. The relator might have made a motion to set aside that order upon which the county judge could have exercised his discretion either in remitting the punishment or in modifying the same. This proceeding, _ however, is based upon the illegality of the imprisonment — the invalidity of the order upon which the relator is imprisoned. It has been apparently so decided as the order from which this appeal is taken recites that the imprisonment is unlawful and unauthorized. That part of the order, therefore, which assumes to set aside the prior order is ineffective as not within the purview of this proceeding. (See People ex rel. Woolf v. Jacobs, 66 N. Y. 8.)

The validity or legality of the order of January second was, however, before the court. While in this proceeding the order could not have been set aside, nevertheless the relator could have been released from imprisonment had such order been invalid or unauthorized. ■ ,

The validity of this order is challenged by reason of the fact that the order of July twenty-seventh was not served upon the relator personally but was only served upon A. P. Fish, her attorney ; also i»y the fact that the order to show cause upon which the order of January second was made was served only upon the attor- . ney. It will be borne in mind that this order of July twenty-seventh was the order which adjudged the relator guilty of contempt in failing to appear before the referee pursuant to the subpoena originally issued and personally served, and which also required ■ the relator to appear before the referee upon August eighth, and for a failure to obey which order she was finally adjudged in contempt and imprisoned. It is undoubtedly a general rule that, in order to bring a party in- contempt, the order requiring the specific act for failure to perform which a contempt is claimed, must be personally served upon the party. In this case the relator was not a party to the proceeding but was a witness only. The subpoena requiring her attendance before the referee was personally and duly served upon her. The command of this subpoena she refused to obey, and for this refusal she was, by the order of July twenty-spventh, ■ fined ten dollars. By that same order she was required to obey the command oft the subpoena upon a new day fixed by the order, to wit, the eighth day of August. She was properly before the court. This requirement could have been made by the court as incidental to the punishment for her refusal to obey the command of the subpoena. The failure to serve the same personally upon the relator or. to serve upon the relator personally the order to show cause why she should not be punished for a contempt in refusing to- appear upon the eighth day of August is, under the authorities, no objection to the demand of the judgment creditors' that she be punished for contempt in failing to respect the amended, date of the command of the subpoena. In Rochester Lamp Co. v. Brigham (1 App. Div. 490) an order was personally served within the State upon the defendant requiring him to appear upon a certain day. It was afterwards vacated and later the order vacating that order was reversed by the General Term, and this order of reversal fixed a new date upon which the defendant should appear. This order was served not upon the defendant, but upon his attorney, and it was held that the order of the General Term and the order to show cause why he should not be punished for contempt in refusing to attend upon the adjourned day might properly be served upon the attorney. Until a party has purged himself of the contempt, both by paying the fine imposed and by obeying the command of the'writ, he is in court subject to its jurisdiction through his attorney, who stands for him both to defend him from the responsibility of his disobedience of the mandate and tó receive for him such notice as needs be given to him of the order made in the proceeding.

In this proceeding the relator claims that she knew nothing, of this order and was not informed thereof by Mr. Fish; that the attorney had no authority to appear for her in the proceeding and that he is insolvent. Whatever force might be given to these allegations, upon an application to the County Court to modify the order of January 2, 1902, they can hardly affect the question as to the jurisdiction of the judge to grant the order under which the relator was imprisoned. As that order was lawfully granted, the imprisonment was authorized and the order releasing the relator therefrom should be .reversed and the relator remanded to the sheriff of the county of Broome pursuant to the order upon which she was held at the time of her release.

All concurred.

Final order reversed and relator remanded to the sheriff of the county of Broome.