Duffus v. Brown — 12 N.Y. St. Rep. 454

Majority

p. 454

William Duffus, Resp’t, v. John C. Brown, Impleaded, etc., App’lt.

(Supreme Court, General Term, Fourth Department,

Filed November, 1887.)

Headnote

Practice—Order to punish for disobeying subpoena—What it should contain—Code Civ. Pro., § 3381.

An. order imposing a fine upon a witness for failure to obey a subpoena should contain an adjudication that the conduct complained of was calculated to or did actually defeat, impair, impede or prejudice the rights or remedies of the party complaining.

Appeal from an order of Onondaga special term imposing a fine of fifty dollars for failure to obey a subpoea.

Youmans, Adee & Youmans, for app’lt; Walter S. McGregor, for resp’t.

In the Matter of Swenarton v. Shupe ( 40 Hun, 43 ), there was no adjudication in the order appealed from that the conduct complained of was calculated to or did actually defeat, impair, impede or prejudice the rights or remedies of the party complaining.

Hence it was reversed. In the order here now for review there is such an adjudication which places this case within the provisions of section 2281 of the Code of Civil Pro’CGiilirG

It should not he disturbed. 24 N. Y., 74 . Matter of Morris, 10 N. Y. State Rep., 50.

We think the order contained a compliance with the provisions of the statute referred to above. Fischer v. Langbein, 103 N. Y., 85 ; 2 N. Y. State Rep., 768.

The facts and circumstances presented by the motion papers called upon the court “for the exercise of judgment and reason upon evidence which might in its consideration affect different minds differently,” and we see no occasion for us to doubt the soundness of the conclusion reached at the special term.

If the witness had appeared on the 10th or 11th of January, presumably the plaintiff would have obtained his judgment on one of those days.

The non-appearance of the witness impeded delayed and was calculated to impair and delay the plaintiff’s remedy in seeking an early judgment.

The excuse of defendant for his non-appearance in obedience to the subpoena is not adequate or reasonable. Section 853 Code Civ. Pro.

The advice of Mr. Gibbs being stated only in the defendant’s affidavit forms no barrier to the adjudication. There was no affidavit of Mr. Gibbs in accordance with the sound rule laid down in People v. Compton, 1 Duer, 537 .

In Fischer v. Raab ( 81 N. Y., 238 ), there was no adjudication, nor did any facts appear which carried the case under the statute. The case is no aid to the appellant here.

The fact that the arrest was made upon a warrant of the sheriff of Delaware, furnishes no ground for disturbing the order. Code, §§ 2266, 2269.

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

Follett and Martin, JJ.. concur.