People ex rel. Duffus v. Brown , 12 N.Y. St. Rep. 454 ( 1887 )

Follett, J.:

The appellant, a resident of Delaware county, was duly subpoened to attend a Circuit Court, held in Onondaga county, and testify in behalf of the plaintiff in an action wherein William Duffus was plaintiff, and John W. Webster was defendant. The appellant not obeying the subpoena, these proceedings were instituted to punish him for contempt. It was charged that the appellant’s disobedience “ was willful, and was calculated to defeat, impair, impede or prejudice the rights or remedies of this plaintiff in said action brought in said court.” Pursuant to section 2269, Code of Civil Procedure, an attachment was issued, under which the appellant was arrested in Delaware county by the sheriff of that county and taken before the justice who issued the attachment, at his chambers in Onondaga county. Upon a hearing it was adjudged that “the said John C.. Brown has committed the offense charged, and that it was calculated to defeat, impair, impede or prejudice the rights or remedies of said William Duffus,” and a fine of fifty dollars was imposed and the appellant was committed to the jail of the county of Onondaga until the fine should be paid, not exceeding fifty days. The appellant asks for a reversal of this order, because (1), it was not found that the disobedience of the subpoena caused the defendant any pecuniary loss or damage; (2), that the appellant had a reasonable excuse for not obeying the subpoena; (3), that the sheriff of Delaware county was without authority to arrest the appellant in that county and carry him before the judge in Onondaga county. Section 14 of the Code of Civil Procedure, which makes the disobedience of a subpoena a contempt provides: “ § 14. A court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct,- by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded or prejudiced, in either of the following cases: * * 5. A person subpoenaed as a witness, for refusing or neglecting to obey the subpoena, or to attend, or to be sworn, or to answer as a witness.”

- The proceedings for the punishment of violations of this section are prescribed by title 3 of chapter 17 of the Code of Civil Procedtu’e, section 2266. Section 2284 of this title provides: “ Where it is not shown that such an actual loss or injury has been produced, a fine must be imposed, not exceeding the amount of the complainant’s costs and expenses, and two hundred and fifty dollars in addition thereto.” TMs expressly authorizes the imposition of a fine for the disobedience of a subpoena, though no actual loss or injury has been occasioned, and takes the case out of the rule laid down in Carrington v. Hutson (28 Hun, 371), as applicable to actions brought for such disobedience.

• In this case it appears that the' plaintiff paid the appellant twelve dollars and ninety cents fees as a witness, and the sheriff two dollars and twenty-five cents for serving the subpoena, besides such expenses as were incurred in the prosecution of this proceeding. The appe1lant’s first ground is not tenable. The second ground is a question of fact; with the determination of which this court will not interfere.

Subdivision 2 of section 2269 (Code Civ. Pro.), provides that the writ may be “ directed to the ¿sheriff of a particular county, or generally to the sheriff of any county where the accused may be found, commanding him to arrest the accused, and bring him before ,the court or judge.” The fact that the writ was directed “ to the sheriff of Onondaga county,” and generally does not invalidate the writ, or the proceedings had thereunder. The particular direc,tion — to the sheriff of Onondaga county — was mere surplusage. The writ was addressed to and executed by the sheriff of the county where the appellant was found. These reasons lead me to concur in the conclusion reached by brother Habdin that the order should ¡be affirmed, with costs.

Habdin, P. J.:

In the Matter of Swenarton v. Shupe (40 Hun, 43), there was no adjudication in the order appealed from that the conduct complained of was calculated to or did actually defeat, impair, impede or prejudice the rights or remedies of the party complaining. Hence it was reversed; in the order now here for review there is such an adjudication, which places this case within the provisions of section 2281 of the Code of Civil Procedure. It should 'not be disturbed. (People ex rel. Hackley v. Kelly, 24 N. Y., 74; Matter of Morris, 45 Hun, 171.) We think, the order contained a compliance with the provisions of the statute referred to above. (Fischer v. Langbein, 103 N. Y., 85.)

The facts and circumstances presented by the motion papers ■called upon the'court “ for the exercise of judgment and reason upon ■evidence which might in its consideration affect different minds ■differently,” and we see no occasion for us to doubt the soundness of the conclusion reached at the Special Term. If the witness had appeared on the' tenth or eleventh of January, presumably the plaintiff would have obtained his judgment on one of those days. The non-appearance of the witness impeded, delayed and was calculated to impair and delay the plaintiff’s remedy in seeking an early judgment. The excuse of defendant for his non-appearance in ■obedience to the subpoena is not adequate or reasonable. (Code of •Civil Pro., § 853.) The advice of Mr. Gibbs, being stated only in the defendant’s affidavit, forms no barrier to the adjudication. There was no affidavit of Mr. Gibbs in accordance with the sound rule laid down in People v. Compton (1 Duer, 512). In Fischer v. Raab (81 N. Y., 238), there was no adjudication nor did any facts appear which carried the case under the statute. That case is no aid for the appellant here. The fact that the arrest was made upon a warrant by the sheriff of Delaware, furnishes' no ground for disturbing the order. (Code, §§ 2266, 2269.)

The order should be affirmed, with ten dollars costs and disbursements.

Martin, <T., concurred.

Order affirmed, with ten dollars costs, including disbursements.