Mount Vernon Co. v. Mount Vernon Metal Products Co.

206 A.D. 708

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1923
• Status: Published

Opinion

Order adjudging appellant guilty of contempt reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Upon the facts disclosed, the court had not acquired jurisdiction of the appellant, the conclusive proof showing that personal service of the subpoena and order to show cause had not been made in the manner prescribed by statute. (Civ. Pr. Act, § 299; Rules of Civ. Prac. rule 20; Tebo v. Baker, 77 N. Y. 33; Johnson v. Ackerman, 192 App. Div. 890.) Manning, Kelby, Young and Kapper, JJ., concur; Kelly, P. J., concurs in the result upon the ground that the contempt charged was failure to obey the subpoena, and the court found that the subpoena had not been served upon the appellant; he was, therefore, convicted of a contempt with which he was not charged.