Kelty v. Yerby

31 How. Pr. 95

• Court: New York Court of Common Pleas
• Decided: May 15, 1866
• Status: Published

Opinion

This was a motion calling upon the defendant, the judgment debtor, to show cause why he should not be punished for his misconduct in disobeying the order served upon him “by failing to appear before R. J. Gumming, Esq., the referee, at the time and place in said order required," as for a contempt of said court. ■

It was admitted that the defendant had been served with a copy of the order, and that the time at which ho was to attend before the referee was properly inserted, but no place was mentioned at which he was to attend; and this, it was contended, was fatal to the motion.

The plaintiff’s counsel then argued that on the day mentioned in the order, in consequence of the defendant not appearing, the referee adjourned the meeting to a future day, and that the defendant was informed thereof, and of the place at which he'was to attend; and that, therefore, he could not be prejudiced by the omission of the place in the order.

It was held by the court that the order itself being bad, for the reason assigned, the giving the notice could not remedy the defect.

In fact, there being no place stated in the order, there could be no meeting; and there being no meeting, it could not be adjourned.

The court denied the motion.

Thomas G. Ritch, counsel for plaintiff.

Thomas Bisgood, counsel for defendant.