Watrous v. Kearney , 18 N.Y. Sup. Ct. 584 ( 1877 )

Learned, P. J.:

If the proceedings to punish for contempt were regular and on due notice, then we cannot inquire, on this proceeding, whether the injunction was lawfully granted by the county judge. That was a matter passed upon, when the court made an order punishing these defendants for contempt. It should be reviewed by appeal from that order. The same is true as to the amount of the fine. If that was wrong, or if the costs and expenses should have been taxed before imposing the fine, the remedy of the defendants is by appeal. "Where parties have been brought into court and have been fairly heard, the decision is conclusive, unless reversed by appeal, on all the matters involved in it. Nor can we here examine over again the justice or injustice of the fine. The facts were ascertained before the referee and acted upon by the court, and its action remains without any appeal therefrom.

The only question here is whether the defendants Kearney and Lillybridge were duly before the court.

They were arrested on the attachment; they gave bail, and they actually appeared in court on the return of the attachment. They say (or one of them says) that they employed no attorney or counsel. This is contradicted by a recital in the order of the court; by the affidavit of Mr. Johnson, who appeared for them, and by the affidavit of Mr. Hotchkiss, the plaintiff’s attorney and counsel. The defendants must be mistaken in this.

Mr. Johnson states, that he appeared for these defendants, from time to time, before tbe referee till tbe 5th of October, 1871. About that day, Mr. Ramsay appeared for all the defendants in the action. On his death, and about three months afterwards, Messrs. Smith, Bancroft & Moak appeared for all the defendants.

The plaintiffs attorney was fully justified in treating Mr. Johnson, Mr. Ramsey and Messrs. Smith, Bancroft & Moak, successively, as the attorneys of the defendants. They had regularly appeared as such, and in regard to Mr. Johnson, he appeared for them in court and in their actual presence. This is a case where, if the appearance of the attorneys was unauthorized, the remedy should be sought against them.

But the defendants insist that none of these proceedings could be regularly served on their attorneys. The attachment, of course, must be served personally. But there is no reason why the party attached should not have the privilege of acting by attorney, when his personal presence is not required. It is said that it is in the discretion of the court to give notice to the party proceeded against of the hearing on the question of contempt. (Yan Sant. Eq. Pr., 632.) But however this may be, notice to his attorney, after the due commencement of the proceedings by attachment, must be sufficient.

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

Present — Learned, P. J., Bockes and Boardman, JJ.

Order affirmed, with ten dollars costs and disbursements for printing.