Rochester Lamp Co. v. Brigham ( 1896 )

WILLIAMS, J.

—The original order for examination was served personally upon the defendant within the -state. The court thereupon accquired jurisdiction of the defendant in this particular proceeding, as it already had jurisdiction of him in the action generlly. Tli: proceeding in 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 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 lo 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 an 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 The general term order, in effect, merely fixed a new time for him to comply -with the order originally made.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 the time direction, every adjournment would have to be personally served, and the failure -to effect such service upon a single occasion would nulify 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 personlly served upon him. But that here was the original order, not the order of reinstatement. The latter was simply a judicial dilution to continue obedience to the original reinstated order; and the contempt consisted of failure to obey such original and reinstated order after notice of this judicial direction, as prescribed by the general term.

Hor 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; Zimmerman v. Zimmerman, 14 N. Y. Supp. 444.

The order appealed from should be reversed, with $10 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 the circumstances.

All concur.