59 N.Y.S. 21 | N.Y. App. Div. | 1899
This is an appeal from an order adjudging the defendant to be in contempt for failure to appear in supplementary proceedings according to the requirement of an order duly made and served upon her. The notice of appeal is from the order adjudging the defendant to be in contempt, but it also states that the appeal is taken from “ all proceedings had or taken herein, and each and every part of said order and proceedings.” Under this clause of the • notice, the appellant has sought to attack rulings made when the action in which judgment was obtained against her was called for trial, and particularly the ruling of the justice at the Trial Term refusing to grant a postponement of the trial on her application. The notice of appeal does not specify any particular order or direction or ruling objected to or sought to he reviewed, and it seems as if the appellant were under the impression that on the present appeal the whole litigation between- the parties to the action may be brought before the court for review. It is unnecessary to make any comment upon such a proposition. There were no intermediate orders made in the course of this special proceeding, to be brought up by this notice of appeal.
Upon the merits of the application to punish the defendant for a contempt,- there can be no question that she wantonly and perversely disobeyed the order of the court, notwithstanding which she was treated with great leniency in the provisions of the order adjudging her to be in contempt. A fine of $170 was. imposed upon her, which is an amount about equivalent to the judgment recovered against her. The order appealed from was made on the 4th of September, 1897, and by one of its provisions she was permitted to purge herself of the contempt and be relieved from the payment of the fine imposed, if she appeared for examination under the order in
It is claimed, however, that the court was without jurisdiction to make the order of commitment because the order to show cause why the defendant should not be adjudged in contempt was not served'. Upon her personally. That order was served upon her attorney,, who appeared for her in the action, and he also appeared for her-upon the return day of the order to show cause and was heard upon, the motion and filed an affidavit in opposition thereto, and that was-sufficient to give the court jurisdiction. (Pitt v. Davison, 37 N. Y. 235; Hart v. Johnson, 43 Hun, 507.)
It is further suggested that the order appealed from was improperly -made, because of the existence of a stay of proceedings under-the judgment upon which the order in supplementary proceedings, .was founded. It appears that the defendant had made an' application to vacate and set aside the judgment. That judgment had been, taken virtually by default. Thé motion to vacate was made upon, an order to show cause, which contained the following provision:: “ In' the meantime, and until the further order of this court, let all further proceedings on the part of the plaintiff he stayed.” That, order is dated April 8, 1897. We find in the record an order made at the Special Term on May 11,1897, denying the motion to vacate based upon the order to show cause of April 8, 1897.
We are of. the opinion that tike order below was properly made that the conduct' of the judgment debtor was. deliberate, was calculated to and did actually impair, impede and prejudice the right of the plaintiffs.
The order, therefore, should be affirmed, with ten dollars costs- and disbursements. ;
Yah Brunt, P. J., O’Brien, Ingraham and McLaughlin, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.
