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Mahoney v. Sutphin

164 A.D. 794 Court Second Department, Decision date 1914-11-20 English

Delivered by *795 Jenks, P. J.:

Contents

Majority

p. 794
Emma L. Mahoney, Respondent, v. Grace V. Sutphin, Appellant.
Second Department,
November 20, 1914.

Headnote

Appeal — appeal from order requiring party to explain failure to obey certain orders.
An order requiring a plaintiff to be brought up to answer for her failure to obey certain orders of the court, and to be further dealt with according to law, is appealable only as to the power of the county judge to make such an order.
Appeal by the defendant, Grace V. Sutphin, from an order of the County Court of Nassau county, entered in the office of the clerk of said county on the 30th day of July, 1914.
William T. McCoun [George B. Stoddart with him on the brief], for the appellant.
Ceorge B. Hayes [Julius Davison with him on the brief], for the respondent.

I think that the order is appealable in so far as we may consider the power of the County Court judge to make an order of this character. (People ex rel. Platt v. Canvassers, 74 Hun, 179 -188.) I think that he had such power. (Judiciary Law [Consol. Laws, chap. 30; Laws of 1909, chap. 35], § 757.) But the order in question is not final in the sense that it determines anything. It but requires that the appellant be brought up to answer for her failure to obey certain orders of the court and to be further dealt with according to law. She is called upon for explanation. She may satisfy the court, she may convince the court that her attitude was entirely legal. I think, therefore, that the appeal save in the respect indicated is premature. (See as to the general principle, New York & N. H. R. R. Co. v. Ketchum, 3 Keyes, 24, cited in Brinkley v. Brinkley, 47 N. Y. 44 , and to be read with section 1342 of the Code of Civil Procedure; Greite v. Henricks, 71 Hun, 11 ; Siegel v. Solomon, 92 N. Y. Supp. 238 ; Field v. White, 102 App. Div. 365 .)

The order should be affirmed, with ten dollars costs and disbursements.

Burr, Thomas, Rich and Stapleton, JJ., concurred.

Order of the County Court of Nassau county affirmed with ten dollars costs and disbursements.

Statutes and regulations cited