Summary
In Rochester Lamp Co. v. Brigham (1 App. Div. 490) an order was personally served within the State upon the defendant requiring him to appear upon a certain day. It was afterwards vacated and later the order vacating that order was reversed by the General Term, and this order of reversal fixed a new date upon which the defendant should appear.
Summary of this case from Matter of DepueOpinion
February Term, 1896.
Edward C. Perkins and Ernest S. Jackson, for the appellant.
H.M. Brigham, for the respondent.
The original order for examination was served personally upon the defendant within the State. The court thereupon acquired jurisdiction of the defendant in this particular proceeding, as it already had jurisdiction of him in the action generally. The proceeding for his examination was a proceeding in the action. The original order, in legal effect, required the defendant to appear and submit to examination as a witness, not only on the day fixed in the order, but on such other days as the court or judge should, by adjournment or otherwise, direct.
The examination of the defendant was never had because, on his application, the original order was vacated by the judge before whom the proceeding was then pending. Having accomplished this result the defendant left the State, went beyond the jurisdiction of the court and its judges, and has never since returned. The reversal by the General Term of the order vacating the original order for examination restored such original order, and it thereupon became binding upon the defendant, and his duty was to obey it.
It was not necessary that the order of the General Term, fixing a time for the execution of the original order requiring the defendant to appear and be examined, should be personally served upon him within the State in order to have jurisdiction of his person for the purpose of punishing him for contempt. Jurisdiction had already been acquired in the proceeding and was not lost by the vacating of the original order on the application of the defendant. The proceeding was merely suspended pending the appeal, and until the decision of the General Term.
The General Term order, in effect, merely fixed a new time for him to comply with the order originally made. Of that new time he had notice, and that was all that was needful. Upon learning that the original order was reinstated, and that the court required his presence thereunder upon a given day, it was his duty to present himself upon that given day and submit to examination. To hold otherwise would be to ignore the substantial requirement of the original order and to treat the time incident as its crucial mandate. Upon such a narrow construction of time direction notice of every adjournment would have to be personally served, and the failure to effect such service upon a single occasion would nullify the entire proceedings. We cannot, therefore, follow the extreme rule laid down in McCaulay v. Palmer (40 Hun, 38). We quite agree that to punish a party for contempt the order which was disobeyed must have been personally served upon him. But that, here, was the original order, not the order of reinstatement. The latter was simply a judicial direction to continue obedience to the original reinstated order, and the contempt consisted of a failure to obey such original and reinstated order after notice of this judicial direction was served, as prescribed by the General Term. Nor was it necessary that the order to show cause why the defendant should not be punished for contempt should be personally served on the defendant within the State. It was properly served on his attorneys. ( Pitt v. Davison, 37 N.Y. 235; Zimmermann v. Zimmermann, 14 N.Y. Supp. 444.)
The order appealed from should be reversed, with ten dollars costs and disbursements and the motion remitted to the Special Term to be heard upon the merits, when the court can give the defendant such time to appear and submit to examination as may be deemed reasonable under all the circumstances.
VAN BRUNT, P.J., BARRETT, RUMSEY and INGRAHAM, JJ., concurred.
Order reversed, with ten dollars costs and disbursements and the motion remitted to the Special Term to be heard upon the merits.