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Aldrich v. Davis

19 N.Y.S. 765 Court N.Y. Gen. Term Decision date 1892-07-02 English

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p. 765
Aldrich et al. v. Davis.
(Supreme Court, General Term, Third Department.
July 2, 1892.)

Headnote

Contempt—Supplementary Proceedings—Powers op Special Surrogate.
,
A special surrogate, who issues an order in supplementary proceedings, has-power to punish for the disobedience thereof, under Code Civil Proc. § 2457, which provides that a person who refuses to obey an order of a judge or referee in supplementary proceedings “may be punished by the judge, or by the court out of which the execution was issued, as for a contempt. ”
Appeal from surrogate’s court, St. Lawrence county.
Action by Alvin M. Aldrich and others against Frank L. Davis. Defendant appeals from an order made by a special surrogate in supplementary proceedings, adjudging him guilty of contempt in disposing of certain goods in violation of the surrogate’s order. The technical defense set up by defendant was that the motion to punish for contempt should have been made returnable at a term of court at which a contested motion could be heard, and. that the special surrogate had no authority to hear the same.
Affirmed.
Argued before Mayham, P. J., and Putnam and Herrick, JJ.
Sawyer & Sawyer, (George C. Sawyer, of counsel,) for appellant. Chamberlain <& Caldwell, (Worth Chamberlain, of counsel,) for respondents.

It is not claimed that the original order in supplementary-proceedings was not properly and regularly issued by A. Z. Squires, special surrogate of St. Lawrence county, under the provisions of section 2434, Code-Civil Proc. Therefore the defendant, disobeying that order, may be punished by the judge who issued it as for contempt. Section 2457, Code Civil Proc.;[1] Fiero, Spec. Proc. p. 545. It is well settled that in supplementary proceedings the judge who made the order has full power out of court to punish for contempt. Shephard v. Dean, 13 How.,Pr. 173 ; Lathrop v. Clapp, 40 N. Y. 328 . We think that the affidavits presented to the special surrogate sustained his conclusion on the question of fact in the case.

Order affirmed, with costs and printing disbursements.

1 This section provides that a person who refuses to obey an order of a judge or referee in supplementary proceedings “may be punished by the judge or by the court, out of which the execution was issued, as for a contempt. ”

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