In re Strong — 177 N.Y. 400

Majority

p. 400

In the Matter of the Application of William E. Strong et al., Respondents, to Compel Frank E. Randall, Appellant, to Answer Certain Questions. The Western Gas and Fuel Company, Appellant.

Headnote

Appeal — Final Order in Contempt Proceedings undjt.r Section 915, Code op Civil Procedure. Proceedings taken under section 915 of the Code of Civil Procedure to punish a witness for contempt in failing to give testimony for use in another state constitute a special proceeding; and the final order therein, from which an appeal will lie to the Court of Appeals as a matter of right, is that which punishes or refuses to punish the witness; no appeal will lie from an order which merely directs the witness to answer specified questions and is, therefore, interlocutory in its character, and an appeal therefrom must he dismissed.

(Argued February 8, 1904;

decided February 16, 1904.)

Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, made January 5, 1904, which reversed an order of Special Term denying a motion to compel Frank E. Randall to answer certain questions, and granted such motion.

The motion was made upon the ground that the order was not appealable to the Court of Appeals.

Frank E. Blackwell for motion.

Willard Parker Butler, Sanford Robinson and Julius F. Workum opiposed.

While we are of opinion that proceedings taken under section 915 of the Code of Civil Procedure to punish a witness for contempt in failing to give testimony for use in actions or suits in other states constitute a special proceeding within the definition of the Code, we are also of opinion that the order from which the present appeal is taken, which merely directs the witness to answer specified questions, is interlocutory in its character. The final order in the proceeding will be that which either punishes or refuses to punish the witness for contempt, should he persist in his refusal to

p. 401

testify, and it is such an order only that is appealable to this court, as a matter of right.

The appeal should he dismissed, with costs, and ten dollars costs of motion.

Parker, Oh. J., Gray, O’Brien, Haight, Martin, Vann and Cullen, JJ., concur.

Appeal dismissed.