Haynes v. Hatch — 16 N.Y.S. 685

Majority

p. 685

Haynes v. Hatch.

(Supreme Court, General Term, Second Department.

December 14, 1891.)

Headnote

Contempt—Disobedience of Order—Service on Attorney.

Defendant cannot be punished for contempt for failing to appear for examination before trial on an order of court which was not served upon him, but on the attorney who had appeared for him in the action. MeCaulay v. Palmer, 40 Hun, 38 , followed.

Appeal from special term, Kings county.

Action by Edward Haynes against Edward Hatch. Plaintiff appeals from an order denying his motion to punish defendant for contempt for failing to appear for examination before trial. Affirmed.

The order requiring defendant to appear for examination (see 15 H. T. tiupp. 615) before trial was not served upon him personally, but upon the attorney who had appeared for him in the action.

Argued before Barnard, P. J., and Dykman and Pratt, JJ.

Deming & Logan, (Charles M. Demond, of counsel,) for appellant. Henry Tompkins, for respondent.

We think the court below correctly held this case to be controlled by McCaulay v. Palmer, 40 Hun, 38 . It follows that the order appealed from must be affirmed. After an attorney has appeared in an action, it may well be that a service upon him should be sufficient upon which to base proceedings for contempt against the client. But such change in the practice must be made by the legislature. Order affirmed, without costs.