General
THE ARCTIC FIRE INSURANCE COMPANY a. HICKS
7 Abb. Pr. 204·New York Supreme Court·1858·NY
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Opinion
THE ARCTIC FIRE INSURANCE COMPANY a. HICKS.
Supreme Court, First District;
General Term, July, 1858.
• An order returnable on Sunday is a nullity.
A party is not justified in disobeying an order, because it is merely erroneous.
Appeal from an order granting an attachment for contempt.
On the 4th of March, 1858, Mr. Justice Ingraham granted an order for the examination of the defendant as a judgment debtor on supplementary proceedings. It was made returnable on the 14th of the same month, but plaintiff discovering that it was returnable on Sunday, had it altered to the 15th, and gave defendant verbal notice of the alteration. On the 15th the defendant was not present. Upon application of plaintiff’s counsel, Mr. Justice Gierke granted a certificate, and a further order for defendant to appear on the 19th of March, but again he was not in attendance. Mr. Justice Clerke then granted an order to show cause why an attachment should not issue, upon the return of which, before Mr. Justice Davies, defendant’s counsel objected to the issuing of the attachment, on the ground of irregularities, in that the first order was made returnable on Sunday, and that the affidavit of service was not read. . After argument, Mr. Justice Davies ordered the attachment to issue.
From this order the defendant appealed to the general term.
[MAJORITY — By the Court.—Ingraham, J.]
By the Court.—Ingraham, J.
—If the order for the debtor to appear in the supplementary proceedings was returnable on Sunday, it was not a contempt on his part not to appear on Monday: the order was a nullity. The objection that the affidavit was not served with the order should have been taken on the return of the order. He had no right to disobey the order for that cause. The next order, for the 19th, made by Judge Clerke, appears to have been founded on the previously served affidavits. The defendant was in contempt for disobeying it. Even if it was erroneous, he had no right to disregard it. The matters he offered on the return of the attachment may be sufficient to purge the contempt, or, if not, to excuse him to some extent, and thereby reduce the fine to a nominal amount, but it afforded no reason for denying the motion. The order appealed from should be affirmed.
Present, Davis, P. J., and Clerke and Ingraham, JJ.