Opinion
July, 1907.
Watson Raymond, for plaintiffs.
Marx E. Harby, for defendants.
Defendant Greene, individually and as president, was duly served with an order for his examination or deposition under section 873, Code of Civil Procedure. Before the day named therein he applied for and obtained a stay on a motion to vacate said order, which motion was granted, but the Appellate Division thereafter reversed the order entered thereon. The Special Term thereafter made an order directing Mr. Greene, individually and as president, to attend before a referee on June 17, 1907, at ten o'clock A.M., and authorized the service of a copy of said order upon his attorney on or before June 12, 1907. This order was duly so served on June 11, 1907. Mr. Greene failed to appear on the return day, and this motion is made to punish him for contempt. In People ex rel. Platt v. Rice, 144 N.Y. 262, Judge Gray, writing for a unanimous court, says: "The power of the court below to enforce its decisions may be suspended, as the result of an appeal; but its decision loses none of its strength pending the appeal, and, if modifications are made of its terms, to the extent that it is sustained, it is the same order, to the validity and force of which has been added the sanction of this court." Furthermore, the case of Rochester Lamp Co. v. Brigham, 1 A.D. 490, which is directly in point on this issue, and which, so far as I am able to discover, has not been reversed or distinguished, is a controlling authority. The learned counsel for the defendants contends that the striking out of the answer herein as a punishment for contempt is within the prohibition of the Fourteenth Amendment to the Constitution of the United States, and in support of this contention he cites conclusively Hovey v. Elliott, 167 U.S. 409, and Sibley v. Sibley, 76 A.D. 132. I am of opinion that the defendants are in contempt. Some suggestion is made in the answering papers that Mr. Greene is ill or absent, but there is no offer or promise that he will submit to this examination. If he shall, within twenty days, on notice to plaintiffs' attorney, present himself, individually and as president, before the referee for examination, he may move to be purged of his contempt individually and as president of the Greene Consolidated Copper Company.
Ordered accordingly.