Davidson v. Unger ( 1912 )

GERARD, J.

The finding of the court below as to the service • of the summons will not be disturbed.

[1] The insertion of the provision as to punishment for contempt in case of failure to pay the costs of the reference is unauthorized, and defendant should not be punished as for a contempt if he fails to pay such costs. See Karon v. Eisen, 72 Misc. Rep. 12, 129 N. Y. Supp. 177. But as such a provision does not appear in the order appealed from, and as defendant’s time to appeal from the order of reference has expired, the question does not arise here. If defendant was not satisfied with the provisions of the order of reference, he should have appealed, and cannot now review it upon an appeal from a subsequent order.

[2] ' But, as above stated, if proceedings to punish for contempt are brought against defendant, he can successfully resist them, because the court had no authority to insert such a provision in the order. See Karon v. Eisen, supra, which, with strange carelessness is cited by respondent to a court, two of whose members sat in that case, as holding exactly the opposite of what it does hold.

Order affirmed, with $10 costs and disbursements. All concur.