146 N.Y.S. 44 | N.Y. App. Div. | 1914
On November 12, 1913, in a proceeding entitled The People of the State of New York on the relation of J. Benedict Eoache, complainant, against Harry A. Hanbury, accused, Hanbury was arrested under a warrant of attachment allowed by Hon. Bussell Benedict, a justice of this .court. The charge against him was for contempt of court. He was brought before a Special Term of this court in Kings county for the hearing of litigated motions and filed a verified answer denying the contempt, and thereupon interrogatories were framed, which the accused was required to answer. On November 24, 1913, he filed his answer to said interrogatories, under oath, and on the succeeding day an affidavit alleged to be corroborative of such answers. The matter then came on for hearing before Mr. Justice Benedict at said Special Term and on December 30, 1913, an order was entered in said proceeding finding him guilty of criminal contempt and prescribing as the punishment therefor a fine of $250 and imprisonment in the county jail of Kings county for a period of thirty days. On the succeeding day, without notice, he obtained from Hon. James O. Van Siclen, a justice of this court sitting at a Special Term thereof for the hearing of ex parte applications in Kings county, a writ of certiorari addressed to Mr. Justice Benedict, directing him to make return of said proceedings for purposes of review. On January 7, 1914, at the same Special Term, upon the papers upon which said writ of certiorari was granted (Mr. Charles I. Craig, as attorney for J. Benedict Eoache, the relator in the proceeding in which the determination of contempt was made, and a person specially and beneficially interested in upholding such determination, having appeared specially by permission of the court for the purpose of making an application to vacate said writ), the order of December thirty-first directing that such writ issue was vacated and set aside, and the writ issued thereunder was quashed and annulled. Subsequently, and on January 16, 1914, the attorney for said Hanbury appearing and applying therefor, the order of January 7, 1914, was resettled so that it contained a recital that the opinion of Mr. Justice Van Siclen, delivered at the time that the motion to vacate was granted, was one of
The proceedings antecedent to the contempt proceeding are but meagerly stated in the record now before us, but there is sufficient to indicate that Hanbury was being examined as a witness in certain proceedings supplementary to execution in a civil action in which J. Benedict Boache was judgment cred- • itor and one Patrick H. Flynn was judgment debtor, and that, according to the contention of the relator in said contempt proceedings, he willfully and contumaciously refused to answer certain questions addressed to him in the course of such examination when directed to do so by a justice of the Supreme Court before whom such examination was being held. The only question presented by this record is whether the order adjudging said Hanbury guilty of contempt may be reviewed by a writ of certiorari or by a notice of appeal.
Some confusion seems to have arisen as to the proper prac- ' tice arising either from dicta in opinions or because the point as to the proper method of review was not raised. In some instances it has been reviewed by appeal, in others by a writ of certiorari. It makes little practical difference which shall be held to be the proper method, provided only that the practice respecting the same is settled and that it stays settled.
It may assist in arriving at. a correct determination of this question if we clearly apprehend the nature of the proceeding terminating in the order sought to be reviewed. “ A court of record has power to punish for a criminal contempt, a person guilty of either of the following acts, and no others: * * * Contumacious and unlawful refusal to be sworn as a witness; oi’, after being sworn, to answer any legal and proper interrogatory.” (Judiciary Law [Consol. Laws, chap. 30; Laws of 1909, chap. 35], § 750, subd. 5.) Conduct of which Hanbury has been found guilty may constitute a crime (Penal Law, § 600) to be prosecuted by indictment. (Id. § 602; Code Crim. Proc. § 4; People v. Meakim, 133 N. Y. 214.) But the remedies by indictment and the imposition of a fine and imprisonment in a special proceeding for a criminal contempt may coexist. The distinction is made in our statute law between contempt termed
We think that the proceeding to determine whether a person has been guilty of a public or criminal contempt by reason of his conduct in connection with the prosecution of a civil action or special proceeding, and which is instituted by a warrant of attachment or an order to show cause, is a civil special proceeding and not a criminal one. (People ex rel. Negus v. Dwyer, 90 N. Y. 402; Matter of Strong v. Randall, 177 id. 400; Matter of King v. Ashley, 179 id. 281.) In People ex rel. Negus v. Dwyer (supra) defendant was adjudged by a Special Term of the Supreme Court to be guilty of a contempt in willfully violating an injunction order issued in a civil action, and a fine and imprisonment were imposed as punishment therefor. The court there said: “ The conviction here was for a criminal contempt, the disobedience adjudged wilful, and the permitted punishment imposed. (Civil Code, §§ 8 and 9.) It is now said that from such a conviction there is no appeal, because it is not a civil but a criminal special proceeding. It cannot be the latter, for the Code of Criminal Procedure does not recognize or provide for it. That describes what are called ‘ special proceedings of a criminal nature,’ but criminal contempts are not
If such is the character of this proceeding, then “A writ of certiorari cannot be issued, to review a determination, made, after this article takes effect, in a civil action or special proceeding, by a court of record, or a judge of a court of record ” (Code Civ. Proc. § 2121), and “Except as otherwise expressly prescribed by a statute, a writ of. certiorari cannot be issued in either of the following cases: * * * Where the determination can be adequately reviewed, by an appeal to a court, or to some other body or officer.” (Id. § 2122.)
It is not claimed that there is any special statutory authority for review by writ of certiorari in the case that we are now considering. Sections 2121 and 2122 of the Code of Civil Procedure appear in article 7 of title 2 of chapter 16 of said Code. This article concludes as follows: “This article is not applicable to a writ of certiorari, brought to review a determination made in any criminal matter, except a criminal contempt of court.” (Code Civ. Proc. § 2148.) If we should concede
Let us now consider the statutory provisions relative to an . appeal in a civil special proceeding.
“An appeal may be taken, to the Appellate Division of the Supreme Court, from an order, affecting a substantial right, made in a special proceeding, at a Special Term or a Trial Term of the Supreme Court; or made by a justice thereof, in a special proceeding instituted before him, pursuant to a special statutory provision; or instituted before another judge, and transferred to, or continued before him.” (Code Civ. Proc. § 1356.)
We think, therefore, that under the circumstances here disclosed the determination as to the conduct of appellant was a final order affecting a substantial right made in a civil special proceeding. It cannot be reviewed, therefore, by certiorari, but can and must be reviewed by appeal.
Criminal contempt may also arise in connection with a civil action or a civil special proceeding when the offense was com. mitted in the immediate view and. presence of the court, and where the offender is summarily punished. (Judiciary Law, § 751.) In such case it may be that as in the first instance the only record containing any facts showing the particular circumstances of the offense is comprised in the recitals necessarily contained in the order of commitment (People ex rel. Barnes v. Court of Sessions, 147 N. Y. 290; People ex rel. Palmieri v. Marean, 86 App. Div. 278; Judiciary Law, § 752), a proceeding in the nature of a writ of certiorari is proper which shall compel a return by the court or judge making the adjudication, and where the original return is defective, a further return setting forth all the facts. (Code Civ. Proc. § 2135.) Such proceeding may be brought to a hearing upon the writ and the return and the papers upon which the writ was granted. (Id. § 2138.) We will determine that question when it arises. Criminal contempt may also occur in connection with criminal as well as civil actions. (People ex rel. Munsell v. Court of Oyer & Terminer, 101 N. Y. 245, 249.) If the objectionable conduct arose in
In conclusion, we may refer to some of the cases in which the question here involved has been considered, either directly or incidentally. In People ex rel. Mitchell v. Sheriff of New York (29 Barb. 622, 626) there is a dictum to the effect that an order committing a party for contempt, arising in connection with the conduct of a civil action, may not be reviewed by certiorari. (See, also, People ex rel. Hackley v. Kelly, 24 N. Y. 74, 78; People ex rel. Brewer v. Platzek, 133 App. Div. 25.) In People ex rel. Munsell v. Court of Oyer & Terminer (supra) the offense was committed in the course of or in connection with a criminal trial, and the proceedings to inflict punishment therefor were reviewed by certiorari. The same was true in People ex rel. Taylor v. Forbes (143 N. Y. 219) and People ex rel. Barnes v. Court of Sessions (supra). In Lathrop v. Clapp (40 N. Y. 328) it is not entirely clear whether the proceedings were to punish for a civil or a criminal contempt. The order contained no recital that the rights of any one in the supplementary proceeding had been impeded, impaired, prejudiced or defeated by defendant’s misconduct, as would seem to be necessary if it was a civil contempt. This determination was reviewed by appeal. In Kendrick v. Wandall (88 Hun, 518), People ex rel. Negus v. Dwyer (27 id. 548; affd., 90 N. Y. 402), People ex rel. Gaynor v. McKane (78 Hun, 154), People ex rel. Stearns v. Marr (181 N. Y. 463), each of which was a proceeding for a criminal contempt, the order determining the fact of such contempt and imposing punishment therefor was reviewed by
Thomas, Eioh, Stapleton and Putnam, JJ., concurred.
Order vacating order directing writ of certiorari to issue and quashing the writ affirmed, without costs.