| N.Y. App. Div. | Oct 14, 1938
Order modified by providing that the motions to vacate the judgment be granted as to defendants Daily Worker and Hathaway and denied as to defendant Colodny, and by striking out the provision permitting Colodny to appear for examination pursuant to the stipulation of September 20, 1937. As so modified the order is affirmed, without costs; the examination to be held on five days’ notice. The order of February 8, 1938, did not direct Colodny to appear for examination on April 1, 1938. It indicated that he was free to appear pursuant to the special stipulation which related to him. When a failure to comply with the order of February 8, 1938, was made the subject of a motion to punish for contempt, the court granted the motion as to Colodny even though he was not directed by that order to appear on April 1,1938. Hence in so far as the order of April 26,1938, found Colodny in contempt, it was in error. The remedy, however, was by an appeal from that order; none was taken. So far as Hathaway was concerned, the situation before the court which eventuated in the order appealed from concerned a different factual situation from that upon which the order of April 26, 1938, was made. Hence Hathaway was free, despite the April 26,1938, order, to obtain the relief given him. Lazansky, P. J., Hagarty, Carswell, Davis and Adel, JJ., concur.