Ward v. Arenson — 23 N.Y. Super. Ct. 589

Majority

p. 589

Oliver D. Ward et al., Plaintiffs and Appellants, v. Newman Arenson, Defendant and Respondent.

Headnote

1. Under the provisions of the Revised Statutes relating to proceedings as for contempts to enforce civil remedies, (2 R. S., 534,) an attachment to bring a person before the Court, to answer for alleged disobedience of an order of the Court, or a Judge, requiring him to appear in person, cannot 0 be granted without proofj lyr affidavit, both of the service of such order and of the failure to appear.

2. A copy of such affidavits must, according to such statutes, be served on the person charged, a reasonable time before the return of the attachment, to enable him to prepare his defense.

(Before Robertson, White and Monell, J. J.)

Heard, November 29;

decided, December 20, 1862.

This was an appeal from an order discharging an attachment against the defendant, for not appearing pursuant to an order directing him to appear and be examined touching the possession by him of property as a judgment debtor on supplementary proceedings.'

No papers of any kind accompanied the attachment, except an affidavit showing the service of the first order, and another showing the. difficulty of serving an order to show cause instead of an attachment in the first place. The attachment recites the recovery of the judgment, the issuing of the order to be examined and the failure of the defendant to appear before the Justice who made it,

p. 590

on its return day. It did not specify how such failure to appear was established, or whether any affidavits were used to obtain the attachment. It was tested in the name of a different Justice than he before whom such debtor was ordered to appear, and allowed, by the former, ten days after the day on which the defendant was required to appear. A prior attachment was issued, tested in the name of a third Justice of this Court, and allowed by him on the day of the return of the original order, but the defendant was not arrested upon it. Upon the second attachment the defendant gave a bond, with surety, to appear on the return of the attachment, and abide the order and judgment of the Court. He appeared on such return day, when an adjournment was had until next day, at which time the attachment was discharged. The order appealed from does not recite any affidavits or any other documents on which it was made.

(after stating the facts.) There is no evidence of the service on the defendant of any affidavits, or of the presentation of any to thé' Court, on which to found the application for an attachment. The Revised Statutes require that a Court, in all cases but two, specified therein, where any misconduct is committed, otherwise than in its view and presence, shall be satisfied by due proof, by affidavit, of the facts charged, and shall cause a copy of such affidavits to be served on the party accused, a reasonable time, to enable him to make a defense. One of such excepted cases is provided for in the next section, and the other is that of disobedience to a subpoena. (2 R. S., 535, § 3.) Ho such coursp was adopted in this case. A failure to appear can hardly be said to be misconduct committed in the presence of the Court, and it was evidently understood by such statute not to be so, when disobedience to a subpoena was expressly excepted. The contempt is not made out without proof both of the service of the order and the failure to appear. If either is required to be made out by affidavits,

p. 591

both must be, and such affidavits must be served to enable the party charged to purge himself of any contempt by disproof of the facts constituting it, if it can be done. The attachment was irregular and properly set aside.

The order must be affirmed with costs.