Opinion
February 28, 1949.
Order, entered after a hearing, adjudging appellant guilty of a criminal contempt committed during the term of court and while in session, fining appellant therefor and imposing a jail sentence in event of default of payment of fine, reversed upon the law and the facts, and the fine so imposed remitted. Before the opening of court on the second day of the trial of an action before the court without a jury, a conference was held in the Justice's chambers in an effort to settle the case on trial. Settlement was not agreed upon and at the conclusion of the conference, appellant, a young attorney for the defendant in the action, went directly to a telephone to inform an expert witness that the case had not been settled and that the witness' attendance at court was required. The Justice, upon convening court and being advised that appellant was telephoning, sent messengers to instruct appellant to return to the courtroom. These messengers returned to the courtroom and informed the court that appellant was talking on the telephone and had said that she would return to the courtroom as soon as she finished the telephone call. Appellant did that and upon her return to the courtroom, about ten minutes after court had been convened, was directed by the Justice to show cause why she should not be punished for criminal contempt of court. At a hearing in the contempt proceeding, held that afternoon, the above-stated facts were proved. At no time did appellant make any statement or remark other than in explanation of her absence. No insolent or critical statement was made by appellant. In our opinion these facts do not establish disorderly, contemptuous or insolent behavior tending to interrupt the proceedings of the court or to impair its authority within the meaning of the Judiciary Law; nor constitute criminal contempt of court as therein defined. Appeal from the order of commitment is proper. ( Matter of Douglas v. Adel, 269 N.Y. 144, 147.) Nolan, P.J., Johnston, Adel, Sneed and MacCrate, JJ., concur.