Opinion
January, 1913.
Walter L. Bunnell, for appellants.
Respondent filing no brief.
The judgment-creditors obtained an order for the examination of the judgment-debtor, which was duly personally served on him. He appeared on the return day, and the examination was adjourned. Two other adjournments were had, and on the last adjourned day he failed to appear. An order to show cause why he should not be punished for a contempt was obtained, and was served on an associate in the same suite of offices with the judgment-debtor. On the return day of the order to show cause, the motion was denied upon the ground that motion papers to punish for contempt must be served on the judgment-debtor personally or upon his attorney, with leave to renew. Another order to show cause why the judgment-debtor should not be punished for contempt was obtained and served by leaving a copy at his residence in this city between the hours of five and six in the afternoon with a person of suitable age and discretion. On the return day of this order to show cause, the motion was denied upon the ground "that service of the order to show cause upon a person other than the judgment-debtor or his attorney is no service, and does not justify the court in punishing the debtor for his alleged disobedience thereof." If the motion had been to punish the judgment-debtor for a disobedience of the order to show cause, then the ruling of the court would have been correct. It was an order to show cause why the judgment-debtor should not be punished for disobedience of an order that had been personally served upon him.
Article 19 of the Judiciary Law deals with the subject of contempt. Section 760 thereof reads as follows: "When order to show cause may be made. An order to show cause may be made either before or after the final judgment in the action or final order in the special proceeding." Section 761: "Order to show cause defined. An order to show cause is equivalent to a notice of motion; and the subsequent proceedings thereupon are taken in the action or special proceeding, as upon a motion made therein."
In discussing section 2273 of the Code of Civil Procedure, from which the two sections of the Judiciary Law were taken, the Court of Appeals has said: "Before the adoption of the provisions of the Code above quoted, it had been announced in Pitt v. Davison ( 37 N.Y. 235) that a proceeding to punish for contempt, instituted by an order to show cause obtained by one party to an action against another, was a proceeding in the action. Subsequently there was an intimation in at least two cases that such a proceeding should be regarded as a special proceeding, and the revisers in their notes stated that the object of this section was to settle the rule in accordance with the decision of Pitt v. Davison. That they accomplished their purpose is apparent from a careful reading of the statute." Jewelers' Mercantile Agency v. Rothschild, 155 N.Y. 255, 256.
In Pitt v. Davison, supra, the court said (at p. 241): "The order to show cause provided for by the statute, in the absence of any statutory provision to the contrary, was there governed by the practice of the court in regard to orders to show cause, both in respect to its service and the further proceedings upon it."
The Code of Civil Procedure (§§ 796, 797) prescribes how all papers in an action may be served, except "a summons or other process, or of a paper to bring the party into contempt or to a case where the mode of service is specially prescribed by law" (§ 802), and is as follows: "A notice or other paper in an action may be served on a party or an attorney either by delivering it to him personally or in the manner prescribed in the next section." and 797: "Where the service is not personal, it may be made as follows: * * * 4. Upon a party by leaving the paper at his residence within the state, between six o'clock in the morning and nine o'clock in the evening, with a person of suitable age and discretion."
This was the manner of service of the order to show cause herein, and was a sufficient service.
The order denying the motion is, therefore, reversed with ten dollars costs and disbursements; and the matter remitted to the City Court for appropriate action.
SEABURY and LEHMAN, JJ., concur.
Order reversed with ten dollars costs and disbursements, and matter remitted to City Court of the city of New York.