In re the Examination of Fancher

Stratton, J. Assuming, without deciding, that the affidavit upon which the order requiring the judgment debtor to appear and be examined was irregular, I do not think such irregularity, can be urged in defense of the motion to punish for contempt. Such affidavit, at best, was probably not void but only voidable. Baumeister v. Demuth, 84 App. Div. 398. And the judgment debtor, not having taken any affirmative proceeding to vacate or set aside the order, can not now be heard, after he has violated the same, on a mere irregularity. The decisions on this proposition seem to be plain and to the point and are all in effect that a party cannot safely violate an order of a court or judge and then, after the violation, try to impeach the proceeding because of a defect which does not, of itself, make the proceeding void. See Matter of Hatfield, 17 App. Div. 430; affd., 155 N. Y. 628; [13] Rupert v. Lee, 101 App. Div. 492; Shults v. Andrews, 54 How. Pr. 378; Wilcox v. Harris, 59 id. 262. Another objection is made by the judgment debtor that the proceeding for contempt cannot be maintained because there has been no order entered vacating the order granted by Judge Hicks and upon which order no examination was ever had; and upon this proposition the case of Gaylord v. Jones, 7 Hun, 480, is cited. That decision is authority for the proposition that two orders in supplementary proceedings could not be in force at the same time and that the defendant could not be held to obey both orders. It is also authority that, where an order has been granted and thereafter a second order has been granted in the same proceeding, the second order supersedes the first and contempt could not be predicated for violation of the first order, but that a violation of the second order would be sufficient ground for punishment for contempt. In this proceeding it was apparent that the first order and the proceeding thereunder had been treated as abandoned by the judgment creditors, and by the judgment debtor himself, because it does not appear that he submitted to the direction of the order and that heJ made any objections to the second order by any affirmative act. I can find no legal reason for excusing the contempt of the judgment debtor in this proceeding but, inasmuch as he has submitted to an examination and as it appears from the affidavit filed that it was a matter of inadvertence on his part, I do not think he should be punished by a fine any greater than the actual costs sustained by the judgment creditors. From the affidavit submitted by the attorneys for the judgment creditors, it appears that they have expended or become liable to expend fifteen dollars for preparing the original papers and the fees of the referee, and an order should be entered in this proceeding adjudging the judgment debtor in contempt for failing to appear 'and fining him the sum of fifteen dollars, and that he should be imprisoned in the county jail until such fine is paid, not exceeding fifteen days. Had the judgment debtor moved in due time to have vacated the order directing him to appear and be examined [14] for the irregularity in the affidavit, I am inclined to think that such motion must have been granted; but, under the decisions above referred to, I think he cannot urge that in defense of the proceeding to punish for contempt. Ordered accordingly.