Rochester Lamp Co. v. Brigham — 1 A.D. 490

Majority

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Rochester Lamp Company, Appellant, v. John H. Brigham, Respondent.

Headnote

Contempt — order for an examination before trial — the reversal of an order vacating it revives the original order—personal service of the order of reversal unneces sary— nor of an order to show cause why defendant should not be punished.

Upon an appeal from an order denying the plaintiff’s motion to punish the defendant for contempt in disobeying an order to appear and be examined as a witness before trial, it appeared that the plaintiff had, on the 38th day of June, 1895, obtained an order requiring the defendant to appear on the 8th day of July, 1895, and on such other days as the court or judge should, by adjournment or otherwise, direct, which order was duly personally served within the State upon the defendant on the 38th day of June, 1895. It was vacated on July 10, 1895, and on the 18th day of October, 1895, the order vacating it was reversed by the General Term the order of reversal requiring the defendant to appear, in pursuance of the original order, upon the 33d day of November, 1895, which order of reversal, pursuant to its terms, was duly personally served on the attorneys for the defendant in this State, and also upon the defendant himself in England, the defendant having left the State about July 10, 1895, and never having returned. The defendant failed to appear on November twenty-second, and bis default was taken, and subsequently an order was made requiring him to show cause why he should not be punished for contempt, which latter order, pursuant' to its terms, was personally served within this State upon the defendant’s attorneys.

Held, that the defendant was properly adjudged to be in contempt;

That it was not essential that the General Term order, reversing the order vacating the original order, should he personally served upon the defendant as the effect of the General Term order was to reinstate the original order, which had been personally served on the defendant, and was binding upon him;

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That, as the court had acquired jurisdiction of the defendant, that jurisdiction was not lost because the defendant had succeeded in procuring the original order to be vacated by an order which was subsequently reversed on appeal;

That it was not necessary that the order, that the defendant show cause why he should not be punished for contempt, should be personally served on the-defendant within this State; that it was enough that it was duly served upon his attorneys. ■

Appeal by the plaintiff, the Rochester Lamp Company, from an order, made at Special Term, denying the plaintiff’s motion to punish the defendant for contempt in failing to appear and be examined as a witness before trial pursuant to an order of the court.

On the 28th of June, 1895, an order was made by a judge of the court requiring the defendant to appear at Chambers on the 8th day of July, 1895, for examination before trial, and to be there examined as a witness at the instance of the plaintiff as to the issues in the action, and directing the order and affidavit on which it was granted to be served upon the defendant within the State, on or before July 2, 1895. This order was personally served upon the defendant June 28, 1895, in Brooklyn, by delivering to and leaving with him coques of the order and affidavit, and showing him the judge’s signature to the original order. At the time and place specified in the order for the appearance and examination of the defendant, his attorneys appeared and moved the judge then holding Chambers to vacate the order. Thereupon the examination was adjourned by the judge to July 10, 1895. Thereafter and on the same day the judge made an order on such motion, vacating the order for the examination.

An appeal was taken from this latter order to the General Term, and thereafter, and on the 18th day of October, 1895, the order appealed from was reversed and an order to that effect was made by the General Term. In and by such order of reversal the General Term required the defendant, in pursuance of the original order for the examination, to appear before one of the judges of the Supreme Court at Chambers on the 22d day of November, 1895, and submit to such examination; and further ordered that service of a certified copy of the order on -the defendant’s attorneys on or before November 1, 1895, should be sufficient. The defendant left the State about July 10, 1895, and has never returned. A certified copy of the General Term order was served personally on the defendant’s attorneys in New York city November 1, 1895, and

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personally on the defendant himself at Birmingham, England, November 4, 1895. The defendant failed to appear for examination November 22, 1895, and his default was taken hy the judge then sitting at Chambers. Upon papers showing the foregoing facts an order was made December 3,1895, requiring the defendant to show cause at Special Term, December 11, 1895, why he should not be punished for contempt in failing to obey the mandate of the court to appear and submit to such examination; and ordering that service of this order upon the defendant or his attorneys on or before December 4, 1895, should he sufficient. This order and the papers on which it was made were served personally on the defendant’s •attorneys in New York city December 3, 1895, by delivering to and leaving with them copies thereof, and at the same time showing them the signature of the judge to the original order. Upon the return of this order to show cause, after hearing the attorneys for the respective parties, an order was made denying the motion, and from such order this appeal is taken.

Edward O. Perkins and Ernest 8. Jackson, for the appellant.

U. M. Brigham, for the respondent.

The original order for examination was served personally upon the defendant within the State. The court thereupon acquired jurisdiction of the defendant in this particular proceeding, as it already had jurisdiction of him in the action generally. The proceeding for his examination was a proceeding in the action. The •original order, in legal effect, required the defendant to appear and •submit to examination as a witness, not only on the day fixed in the order, but on such other days as the court or judge should, by •adjournment or otherwise, direct.

The examination of the defendant was never had because, on his application, the original order was vacated by the judge before whom the proceeding was then pending. Having accomplished this result the defendant left the State, went beyond the jurisdiction of the court and its judges, and has never since returned. The reversal by the General Term of the order vacating the original order for

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examination restored such original order, and it thereupon became, binding upon the defendant, and his duty was to obey it.

It was not necessary that the order of the General Term, fixing a. time for the execution of the original order requiring tire defendant to appear and be examined, should be personally served upon him within the State in order to have jurisdiction of his person for the purpose of punishing him for contempt. Jurisdiction had already been acquired in the proceeding and was not lost by tire vacating of the original order on the application of the defendant. The proceeding was merely suspended pending the appeal, and until the decision of the General Term.

The General Term order, in effect, merely fixed a new time for him to comply with the order originally made. Of that new time he had notice, and that was all that was needful. Upon learning that the original order was reinstated, and that the court required his presence thereunder upon a given day, it was his duty to present himself upon that given day and submit to examination. To hold otherwise would be to ignore the substantial requirement of the original order and to treat the time incident as its crucial mandate. Upon such a narrow construction of time direction notice of every adjournment would have to be personally served, and the failure to-effect such service upon a single occasion would nullify the entire proceedings. We cannot, therefore, follow the extreme rule laid down in McCaulay v. Palmer ( 40 Hun, 38 ). We quite agree that to punish a party for contempt the order which was disobeyed must have been personally served upon him. But that, here, was the original order, not the order of reinstatement. The latter was simply a judicial direction to continue obedience to the original reinstated order, and the contempt consisted of a failure to obey such original and reinstated order after notice of this judicial direction was served, as prescribed by the General Term. Hor was it necessary that the order to show cause why the defendant should not be punished for contempt should be personally served on the defendant within the State. It was properly served on his attorneys. (Pitt v. Davison, 37 N. Y. 235 ; Zimmermann, v. Zimmermann, 14 N. Y. Supp. 444 .)

The order appealed from should be reversed, with ten dollars costs and disbursements and the motion remitted to the Special Term

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to be heard upon the merits, when the court can give the defendant such time to appear and submit to examination as may be deemed reasonable under all the circumstances.

Van Brunt, P. J., Barrett, Rumsey and Ingraham, JJ., concurred.

Order reversed, with ten dollars costs and disbursements and the motion remitted to the Special Term to be heard upon the merits.