Opinion
January Term, 1900.
John B. Holmes, for the appellant.
Thos. O'Connor and J.W. Houghton, for the respondent.
There was not, we think, any sufficient ground for vacating the stay of proceedings. The ground of irregularity stated in the order to show cause is not here urged. By section 2089 of the Code of Civil Procedure the proceedings upon a writ of mandamus granted at Special Term may be stayed as in an action, by an order made by a judge of the court, but not by any other officer. The stay order here was made by a judge of the court. The relator was not injured by the delay; he was the acting highway commissioner holding over from the prior year. There was no unreasonable delay by Glavin after being served with the writ before he took his appeal, and the conditions in the order staying proceedings fully protected the relator. An undertaking under the provisions of the order had been executed and was ready for approval. A legal question of considerable importance was involved. (See Matter of Reddish, 45 App. Div. 37.) The stay should not have been vacated.
Upon the face of the order punishing the appellant for contempt, it does not appear that any notice of the application for the order was given to the appellant or that there was any appearance by him. It is claimed by the appellant that he had no notice, or any opportunity to be heard in his defense, and that, therefore, the order was improperly made. The contempt charged was the failure of the appellant to obey the command of the writ and make a return. By the Code (§ 2074) it is provided that the return to the writ "must, before the expiration of the first day of the term at which it is returnable, be either delivered in open court, or filed in the office of the clerk of the county wherein the term is to be held." If, as seems to be the fact, the order punishing the appellant was made before the time for the appellant to deliver or file his return had expired, it was made prematurely, and, was therefore, irregular. The contempt charged was not for an act done in the presence of the court, and it is, therefore, difficult to see how, as claimed by the respondent, it could be punished summarily. The counsel refers to section 14 of the Code of Civil Procedure as giving authority to punish summarily. The practice as to notice in cases specified in section 14 is regulated by sections 2266 et seq., and under those provisions it would seem that the appellant was entitled to notice, and that an order without notice would be irregular.
It is, however, claimed by the respondent that, as this order was ex parte, it is not appealable. There seems to be no answer to that proposition. ( Matter of Dunn, 37 N.Y. St. Repr. 802.) The remedy of the appellant was to move at Special Term to set it aside, and if the relief then obtained was not satisfactory, he would be in a position to appeal.
All concurred, except KELLOGG, J., not sitting.
Order vacating stay reversed, with ten dollars costs and disbursements.
Appeal from order punishing for contempt dismissed, without prejudice to an application at Special Term for relief.