246 A.D. 557 | N.Y. App. Div. | 1935
Order reversed on the law, with ten dollars costs and disbursements, writ dismissed and the relator remanded to the custody of the sheriff of Kings county. The orders adjudging the petitioner-relator in contempt and committing him to jail for non-payment of the fine imposed were regular on their face and indicated there was jurisdiction of the person and the subject-matter. The relator in his petition for a writ of habeas corpus charged that there was no jurisdiction by service on him of an order directing him to appear for further examination in supplementary proceedings where he made default in appearance. The recitals in the order indicate that there was jurisdiction of the person; and the petitioner did not present the record of the proceeding of the court at Special Term sustaining the bare claims he has made of lack of jurisdiction. There may have been irregularities and errors of law in the proceeding, but, if so, the petitioner was mistaken in his remedy and should have moved to vacate the orders or taken an appeal therefrom. Such errors and irregularities cannot be reviewed in a proceeding of this nature. (People ex rel. Tweed v. Liscomb, 60 N. Y. 559; People ex rel. Holt v. Lambert, 237 App. Div. 39; affd., 262 N. Y. 511.) The petitioner and judgment debtor has been placed in an unfortunate position by the misguided zeal of his counsel. The execution of that part of the order remanding respondent to jail will be stayed for ten days, during which the judgment debtor will be given opportunity to appear and be examined further in supplementary proceedings on a date to be fixed by the court; and will be further suspended if he so appears and submits himself freely to such examination and pays the costs granted on this appeal. Lazansky, P. J., Scudder, Tompkins, Davis and Johnston, JJ., concur.
