James v. Powell ( 1967 )

Appeal from an order of the Supreme Court at Special Term, entered November 30, 1966 in New York County, which denied a motion by appellant for an order to vacate an ex parte order of commitment for criminal contempt. Memorandum by the Court. Appeal from order entered on November 30, 1966, denying defendant’s motion to vacate a prior ex parte order of commitment, dismissed, without costs or disbursements, and without prejudice to a renewal after appellant shall submit himself to the jurisdiction of the court by complying with the underlying contempt order. It is quite clear from the record, and the history of the case, that the appellant has willfully remained outside of the State in order to avoid the jurisdiction and authority of our courts. He has chosen to do so, but the courts will not, in the meantime, hear this application intended to review the proceedings against him which have resulted in his present plight. If appellant sincerely desires a review by the courts of this State of the previous proceedings “the best proof he can make of the fact is to present himself to the officer who holds, and whose duty it is to arrest him on the commitment; until that shall be done it may reasonably be held that [he intends] * * * to remain away until his liability to arrest has been decided by the courts”. (Matter of O’Byrne, 55 Hun 438, 440, affd. 121 N. Y. 675; see, also, Matter of Meyer, 209 N. Y. 59, 68-69; Dudley v. Press Pub. Co., 58 Hun 181.) In the last cited case, at pages 184-185 of the court’s opinion, there is the following: “That it is the duty of the court not to listen to an application of a party affected by this misconduct to vacate orders adversely to him has been considered and held, under somewhat like circumstances, in Keenan v. O’Brien (53 Hun 30) and Matter of O’Byrne (55 id., 438) 6 * *. Under the facts as they are now presented the plaintiff is not entitled to the assistance of this court * * * the facts which are proven do not entitle the plaintiff to any consideration of the merits of his application at the hands of the court." The court's order to appellant to surrender himself specified surrender on a weekday, when, as indicated in the dissenting opinion, a writ of habeas corpus would have been returnable. It is only because of his wrongful refusal to do so that any question arises regarding enforcement of the order on Sunday. Surely one who disobeys an order during six days of the week is not entitled to an advisory opinion that he may safely ignore it on the seventh.