Brand v. H. A. Improvement Co. ( 1916 )

Guy, J.

The trial of this action had been set down for Januarv 12,1916. Upon the call of the calendar, the case was marked ‘1 ready. ’ ’ The appellant herein, one Silinsky, had been subpoenaed as a witness on the part of the defendant but failed to appear. An attachment was thereupon applied for' by the defendant Improvement Company, and issued by the trial justice and the case adjourned until January 19, 1916. The attachment was returnable on January 14, 1916, and was served on appellant on January thirteenth, and he deposited twenty-five dollars with the clerk of the court as security and was released from arrest. The case was tried on January 19, 1916, and nothing further, as regards the disposition of the warrant of attachment, seems to have been done until February 17, 1916, when the appellant made a motion to vacate it. This motion came up for hearing before a justice other than the one who issued the attachment and was denied by him upon the ground that a prior similar motion had been made and denied by the justice who granted the attachment. There is no proof of this in the present record, and the contrary appears by the affidavit of the appellant. That is not important however in the determination of the present appeal. The defendant Improvement Company urged that the order is not an appealable one but gives no reasons therefor. I am of the opinion, however, that the order cannot be made the subject of review by a direct appeal therefrom. There can be no doubt that a proceeding taken to punish for a contempt is a special proceeding. The Municipal Court Code (§ 154, subd. 2) permits an appeal from: “A final order in a special proceeding.” The former Municipal Court Act provided for an appeal only from a final order in a “ summary proceeding.” The order appealed from in this case, however, is not a final order. The proceedings under the warrant of attachment have not, as yet, been finally adjudicated. They were held in abeyance until after the trial of the action and so far as appears still remain in that condition. Section 155, Municipal Court ■Code, declares that: “An appeal taken from a judgment or final order brings up for review an intermediate order which is specified in the notice of appeal etc. ’ ’ When the proceedings instituted by the issue of the warrant of attachment are finally ended a final order will undoubtedly be entered from which an appeal will lie and an intermediate order can also he reviewed upon such appeal, if it is specified in the notice and necessarily affects the final order.

Bijur and Philbin, JJ., concur.

Appeal dismissed, with ten dollars costs.