Johnson v. Ackerman

Order reversed, with ten dollars costs and disbursements to abide the event, and motion denied, with ten dollars costs. There is no proof that the order which it is claimed the plaintiff violated was served upon him personally or in any other manner. Section 799 of the Code of Civil Procedure provides: “ Where a party has appeared, a notice or other paper, required to be served in an action, must be served upon his attorney.” Section 802 of the Code of Civil Procedure, however, provides that the article in which section 799 is found does not apply to the service of “ a paper to bring a party into contempt.” Such papers must be served personally. (Pitt v. Davison, 37 N. Y. 235.) Section 757 of the Judiciary Law provides for two methods of proceeding to punish for a civil contempt. One is by means of an order to show cause and the other is by means of a warrant of attachment. As neither process issues until the court is satisfied by affidavit of the commission of the offense, no other method of initiating the proceeding can be permitted. (West Hudson County Trust Co. v. Waldron, 119 App. Div. 294; Bradbury v. Bliss, 23 id. 606; Dunlop v. Mulry, 40 Misc. Rep. 131.) As this is jurisdictional, it is not waived by appearance. Jenks, P. J., Mills, Blackmar, Kelly and Jaycox, JJ., concur.