In re Barnes

147 A.D. 396, 132 N.Y.S. 908, 74 Misc. 170, 1911 N.Y. App. Div. LEXIS 2890

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 29, 1911
• Status: Published

Opinions

Per Curiam:

The only authority upon the subject holds that section 856 of the Code of Civil Procedure contemplates no notice to the alleged offender. We do not feel at liberty to overrule those cases. (Matter of McAdam, 7 N. Y. Supp. 454, General Term, First Department, 1889; Matter of Grout, 105 App. Div. 98, Second Department, 1905.) The question, therefore, is whether this section, so construed, violates the appellant’s constitutional rights. In the case of criminal contempts it is provided by section 751 of the Judiciary Law (Consol. Laws, chap. 30; Laws of 1909, chap. 35) that if committed in the presence of the court the offense may be punished summarily; otherwise the alleged offender must have notice and time to prepare his defense. In the so-called civil contempts (Judiciary Law, §§ 755, 757) a person cannot be punished for contempt until after he is brought before the court by warrant or an order tó show cause and given, an opportunity to be heard. The McAdam case, above cited, holds that although no notice is required the section is valid. The Grout case holds that the section is unconstitutional in that the defendant has had no opportunity to be heard. Adopting the construction placed upon the section by the above authorities, that no notice is contemplated, we are constrained to follow the Grout case, as the latest decision of a court of co-ordinate jurisdiction, that the statute is unconstitutional, and that the order should be reversed and the motion for commitment denied.

All concurred, except Houghton, J., concurring in result in memorandum, and Betts, J., dissenting in brief memorandum, and voting for affirmance, on opinion of Justice Joseph A. Kellogg in the court below.