Sonn v. Kenny

DAYTON, J.

This is not a new question in the City Court. It has been specifically raised and decided on identical facts by that -court. In re Nejez, 54 Misc. Rep. 38, 104 N. Y. Supp. 505. The fact that the judgment creditor asked for an order to show cause under section 2269, Code Civ. Proc., does not compel the court upon the return thereof, if there should be a default in appearance, to issue a commitment. The two subdivisions, 1 and 2, of section 2269, merely provide two different methods of summoning the delinquent before the court to answer for the alleged offense; and that is apparent from a reading of the whole of section 2269. By subdivision 1 the debtor is ordered to show cause why he should not be punished. By subdivision 2 he is brought before the court by the sheriff upon a warrant of attachment to answer for the alleged offense. In either event the case against him is not finally -determined; and the section does not compel the court to commit him summarily upon failure to appear on the return of the order to show cause.

The judgment creditor might have asked for a warrant of attachment in the first place. He chose to take the other means. But, as is shown by section 2273, neither is final. The order to show cause is equivalent to a notice of motion; and the subsequent proceedings -are taken as if taken in the action or special proceeding as upon a motion therein made. The warrant of attachment institutes an original special proceeding against the accused, in behalf of the people, upon the relation of the complainant. The first orders the appearance of the delinquent. The second cannot proceed until the delinquent is before the court. And that is the only difference. But if, in the second proceeding, the court still must be convinced that the offense is such that a commitment must issue—that is, if when the delinquent is actually produced he still has a chance to explain and purge himself before being sent to jail—it certainly cannot be successfully contended that upon a default on the order to show cause the court is compelled to issue a commitment.

The order should be affirmed, with costs, for these reasons, and for those given in the case of In re.Nejez, supra.

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