In the Matter of the Application of Vincent Reddish for a Writ of Peremptory Mandamus. James H. Glavin, Supervisor of the Town of Waterford, Appellant; Vincent Reddish, Respondent

In the Matter of the Application of Vincent Reddish for a Writ of Peremptory Mandamus. James H. Glavin, Supervisor of the Town of Waterford, Appellant; Vincent Reddish, Respondent. Stay of proceedings under a peremptory manda-mus — when proper on appeal — notice of an application to punish for contempt, when necessary—an ex parte order is not appealable. A supervisor of a town took an appeal from an order granting a peremptory-writ of mandamus commanding him to forthwith approve the bond of a highway commissioner, six days after the service of the order and five days after the. service of the writ, and on the next day obtained an ex parte order staying proceedings on the order and writ until the determination of the appeal, upon condition that he would bring the appeal on to be heard at the next term of the Appellate Division, and would file an undertaking conditioned that he would pay all costs, not exceeding §500, awarded against him. On the day of the service of the order containing the stay, the attorney for the highway commissioner obtained an order to show cause why the stay should not be vacated for irregularity, the ground stated being that it was not granted in the proper district or in a county adjoining that in which the proceeding was instituted, and upon the hearing thereunder the stay was vacated and the supervisor was, by an order, of the application for which no notice was given to him, adjudged to be guilty of a contempt of court. Held, that as the supervisor had taken his appeal from the order granting the writ with due diligence,' in which appeal a legal question of considerable importance was involved, and as the conditions in the order staying the proceedings fully protected the highway commissioner, who was not injured by the delay, the stay should not have been vacated. It seems, that an order punishing a person for contempt of court in failing to make a return as required by a writ of mandamus, not being for an act done in the presence of the court; cannot be granted on an ex parte application. An.ex parte order is not appealable; the remedy of the aggrieved party is by an application to vacate it and by an appeal from the order made upon such, application. Seinble, that there was no irregularity which authorized the vacating of the sjtay. Appeal by James' H. Glavin, supervisin' of the town of Waterford, from an order of the Supreme Court, made at the Clinton Special Term, and entered in the office of the clerk of the county of Saratoga on the 14th day of August, 1899, vacating and setting aside an order of a justice of the Supreme Court staying the proceedings under a writ of mandamus, and also from an order made at the Clinton Special Term and entered in the office of the clerk of the county of Saratoga on the 14th day of August, 1899, adjudging the said James H. Glavin to be guilty of contempt of court and imposing upon him a fine of fifty dollars. At a Special Term at Canton on the 1st day of July, 1899, after a hearing in the above-entitled matter, an order was made directing that a peremptory writ of mandamus issue, directed to James H. Glavin (supervisor of the town of Waterford),' commanding him to-forthwith approve the bond of Vincent Reddish as highway commissioner of. the town of Waterford theretofore filed with him and. to file the same with the town clerk of that town. This order was-entered in Saratoga county on August 3, 1899,' and at the same date a copy was served on the attorneys of Glavin. The writ was allowed on the 2d of Aug-ust, 1899, and was made returnable at a Special Term at- Plattsburgh on the twelfth of August. The writ- was-served on Glavin on August fourth. On the ninth of August Glavin, by his attorneys, served upon the. attorney of Reddish, -and filed with the county clerk, a notice of appeal to the Appellate Division from the order granting the writ, and upon the tenth of August applied ex parte upon affidavits to Mr. Justice Edwards for an order staying all proceedings on the order and writ until the hearing and determination of the appeal. Such order was granted on condition that the appellant bring the appeal on to. be heard at the next term of the Appellate Division and that the appellant, within ten days from the date of the order, execute and file in the office of the county clerk of Saratoga county an undertaking, approved by a-justice of the court conditioned that the appellant will pay all costs and damages awarded against him on the appeal, not exceeding $500, and will also pay the costs of the order appealed from in case the order was affirmed. This order was served upon the attorney of Reddish August eleventh at about eight o’clock in the morning, and he on the same day obtained from a justice of the court an order for Glavin to show cause at a Special Term at Plattsburgh on August twelfth, why the stay order should not be vacated, it being ■stated in such order as a ground for vacating the stay for irregularity that it was not granted by a justice of the Supreme Court in the fourth judicial district or in a county adjoining Saratoga. This ■order to show cause, as required by its terms, was served on the attorneys for Glavin before six p. m., of the eleventh of August. At the Special Term at Plattsburgh on the twelfth of August, upon the hearing on the order to show cause, an order was made vacating the stay of proceedings, and from this order Glavin ■appeals. At the same term and on the same day an order was made in and by which, after referring to the order of July 1, 1899, and its ■service and the issuing of a mandamus accordingly returnable at the term then being held, and after stating that the relator (Reddish) had filed proof of the due service of said writ on Glavin on the 4th of August, 1899, and that it appeared to the court that Glavin had not obeyed the direction of the writ and had omitted to make to the court at that time and place any return to the writ’ or any excuse for such disobedience, and had not approved and filed the bond as required by the writ, it was on motion of the attorney for the relator ordered that “ James H. Glavin be and hereby is adjudged guilty of contempt of court, and that he be and hereby is fined the sum of fifty dollars and be imprisoned in the common jail of the •county of Saratoga until he obeys the command of said writ of peremptory mandamus, as he has heretofore been directed to do, and pays said fine of fifty dollars.” It was further ordered that Glavin anight purge himself of such contempt by paying said sum to the attorney of the relator and approving and filing the bond. From this order, which was entered August 14, 1899, Glavin appeals. John B. Holmes, for the appellant. Thos. O’ Connor and J. W. Houghton, for the respondent. [MAJORITY — Per Curiam :] Per Curiam : 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 ajipear 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 óf the clerk of the county wherein the term is to be held.” If, as seenis 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 órder without notice would be irregular. It is, however, claimed by. the respondent that, as this order was exjparte, 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.