In re Bornemann — 6 A.D. 524

Majority

p. 524

In the Matter of the Application of Charles D. Bornemann, Respondent, to Compel Franklin J. Bischoff, an Attorney and Counselor at Law, Appellant, to Return and Deliver to Said Bornemann Certain Moneys.

Headnote

Attorney and client ■—• a failure by an attorney to obey an order directing a payment to his client is a contempt — such order cannot be questioned collaterally — a service upon Lincoln’s birthday is valid.

"Where an order has been duly made requiring an attorney to pay to his client certain moneys of the client, and the attorney, although served with the order, fails to appeal from it, he cannot, in proceedings taken to punish him for a contempt in failing to comply with such order, question it collaterally.

Service of an order made upon Lincoln’s birthday, a legal holiday, is valid.

. Appeal by Franklin J. Bischoff from an order of the Supreme Court, made at the New York Special Term and entered in the.

p. 525

office of the clerk of the county of New York on the 19th day of March, 1896, adjudging him guilty of a contempt and committing him to the county jail.

P. A. Ilargous, for the appellant.

Frederick A. Qa/mp, for the respondent.

The appellant was, by an order dated February 1, 1896, required to show cause, on the 3d day of February, 1896, why he should not be compelled to return to the petitioner the sum of $4,525, paid to him as the attorney for the petitioner, to be applied upon the purchase price of certain premises which the petitioner had contracted to purchase. By the petition it appears that such sum was paid to the appellant to pay the balance due under a contract for the purchase of real estate, and that the appellant failed and refused to pay such stun, either to the vendor of the real estate or to the petitioner. That order was duly served upon the appellant, but on its return day he failed to appear, whereupon the justice before whom the motion was brought on for a hearing, adjourned the proceeding until February fifth. Notice of such adjournment was served by mail on the same day upon which the adjournment was granted. Upon the adjourned day the appellant again failed to appear, and the court on February tenth, granted an order, after reciting the facts, by which the appellant was ordered and adjudged to pay to the petitioner, upon demand, the sum of $4,525, with interest thereon from January 15, 1896, together with ten dollars costs of the motion. That order was duly served upon the appellant and a demand duly made upon him for a compliance with that order. That demand was not complied with, although the appellant wrote several letters begging for time and promising to comply with the order. On February twentieth, upon an affidavit setting forth these facts, an order was made directing that an attachment issue directing the sheriff to arrest the appellant and' bring him before the court to answer for his contempt. Under that attachment the appellant was brought before the court, interrogatories were duly exhibited- which the appellant answered, and further testimony was then taken before Mr. Justice Bebkman, whereupon an order was entered adjudging

p. 526

the appellant guilty of contempt in having willfully disobeyed the Order of the court made on the 10th day of February, 1.S96, in . refusing to pay any part of the money specified in said order, and Suing the appellant the amount directed to be paid and interest, and ten dollars costs,, and directing that a warrant issue committing the appellant to close custody in the county jail until such sum was paid, from which order the appellant appeals.

Ño motion was made to set aside the order of Mr. Justice Law. rence directing the appellant to pay .the money, and that order stands-, having been- entered, upon due notice to the appellant,-and the court having jurisdiction it' cannot be reviewed on this appeal. .That order being regular, the appellant does not allege that he has in any way complied with it, and the order directing the commitment to issue was entirely regular.

The appellant claims that the order of February -tenth, -directing him to pay the money, was served -on him on Februaiy twelfth (Lincoln’s birthday), a legal holiday, and, therefore, he seenis to base the claim that the commitment was irregular because .of the fact that the order was Served upon a legal holiday. February .twelfth is not made a day upon which service of papers is illegal, and it has been expressly held iby the- General Term of the Supreme Court that service on Christmas day is legal, (Didsbury v. Van Tassell, Sheriff, etc., 56 Hun, 423 .)

This, order of February 10, 1896, was granted upon notice to the appellant. Ño. motion has been made to vacate .that order, .and it stands in full .force and effect. The' appellant has refused to corn- . jply with that Order or to present any excuse for liis: misconduct to the court, and the -commitment for refusal to comply with .that order was clearly regular.

The order appealed from '.should be- affirmed, with ten dollars costs and disbursements.

. Yan Brunt,.' P. J., Williams, Patterson, and O’Brien, JÉ, -concurred.

Order affirmed, with ten dollars costs and disbursements.