Fall Brook Coal Co. v. Heckscher , 6 N.Y. St. Rep. 676 ( 1887 )

Per Curiam.

The plaintiff had the right to one of two courses in his proceedings to punish the defendant for contempt; either by an order to show cause why he should not be punished for contempt or by proceedings commenced by an attachment. Neither of these courses was pursued by the plaintiff. An order to show cause why the attachment should not issue was granted and upon the hearing of that order to show cause, an attachment was issued, and upon the return of that attachment, without giving the defendant the opportunity to answer provided by the Code, the court issued an order for commitment upon the ground that he had been adjudged guilty of contempt at the time the order for an attachment was issued.

This was error because the Code provides for no such proceeding. If an order to show cause why he should not be punished for contempt had been issued in the first instance, then upon the hearing and decision of that motion, an order for a commitment might have been issued. But this course was not pursued, and upon the return of the attachment, the defendant had the legal right to be heard in the manner provided by the Code.

The order, therefore, for a commitment upon the return of the attachment was irregular and granted without authority, and must be reversed, with ten dollars costs and disbursements.