p. 398Louis M. Walters, Appl’t, v. Mrs. C. A. Kenyon, Resp’t.(Supreme Court, General Term, Fifth Department,Headnote
Supplementary proceedings—Contempt—What sufficient to excuse NON-COMPLIANCE WITH ORDER TO APPEAR BEFORE REFEREE.Plaintiff recovered a judgment in the municipal court of the cit)r of II. against defendant, and transcript of the same was filed in the (ounty clerk’s office and execution issued thereon and returned unsatisfied. Thereafter an order was granted in supplementary proceedings requiring defendant to appear before a referee and submit to examination. Defendant did not so appear, and thereupon the same judge by whom the order u as granted made an order for her to show cause before him why she should not he punished as for a contempt of court in neglecting to appear as directed by the previous order. Upon the return day defendant appeared and lead affidavits tending to show that on the return day of the oroer she was ill and was and had been for some time prior thereto sick and unable to leave her house in consequence thoieof. It also appeared that her ad-visor was an attorney and counselor, who advised her not to appear before the referee and submit to examination, as the proceedings were irregular and void. He also testified that he gave such advice in good faith, with no intent to violate the lawful mandates of the court, and believing it would be the best protection of her rights: Upon an appeal from an order denying the motion to punish for contempt. Meld, that these facts were such as would ordinarily induce a judicial officer to excuse non-attendance. That the order appealed from was properly granted.
The plaintiff recovered a judgment in the municipal court of the city of Rochester against the defendant and a transcript of the same was tiled in the Monroe county clerk’s office and an execution issued thereon and returned unsatisfied. Thereafter an order in proceedings supplementary to execution was granted by the special county judge requiring the defendant to appear before a referee and submit to an examination. The defendant did not appear pursuant to the order, and thereupon the same officer granted an order for her to show cause before him at his chambers why she should not be punished as for a contempt of court in neglecting to appear before the referee as directed by the previous order. Upon the return day the defendant appeared and read affidavits seeking to excuse her failure to appear and submit to examination before the referee. The motion to punish the defendant was denied without costs. From that order the plaintiff appeals.
Turk <£■ Barnum, for app’lt; Barhite & Heed, for resp’t.
The affidavits tend to show that the respondent, on the day fixed for the return of the order supplemental to execution, was ill, and was and had been for some time prior thereto sick and unable to leave her house in consequence thereof. It also appears that her advisor was an attorney and counselor of this court, who advised her not to appear before the referee and submit to an examination, as the proceedings were irregular and void. He also testifies, that he gave such advice in good faith,
p. 399with no intent to violate the lawful mandate of the court, and he believed it would be the best protection of her rights not to appear before the referee and submit to an examination.
These facts would ordinarily induce a judicial officer to excuse the non-attendance.
We concur in view of the facts of the case, with his determination in denying the judgment creditors motion to punish the defendant as for a contempt. Such proceedings are largely discretionary with the officer before whom proceedings to punish for contempt are instituted. Joyce v. Holbrook, 7 Abb., 338 .
On this appeal we do not need to determine whether the defendant was sued by her proper name, nor whether the judgment is binding up her.
Order affirmed, with ten dollars costs and disbursements.
All concur.