People ex rel. Jacobs v. Ball

44 N.Y. Sup. Ct. 245

• Court: New York Supreme Court
• Decided: September 15, 1885
• Status: Published

Opinion

Follett, J.:

Supplementary proceedings were instituted on a County Court judgment before the recorder of the city of Oswego, who referred the matter to a referee to take and report the evidence. The .attorney for the plaintiff in-the proceedings signed a subpoena which was tested in the name of the judge of the County Court and purported to bear the signature of the county clerk. The original ■subpoena was exhibited to the appellant and a ticket containing the substance of the original subpoena was delivered to her and her fees as a witness paid. The papers in form and the proceedings under them were sufficient to legally subpoena a witness to testify in an action pending in a County Court. The witness failed to attend, for which she was adjudged in contempt and fined thirty dollars by the recorder.

Supplementary proceedings are special proceedings. (Code Civil Pro., § 2433.) The subpoena should have issued under the hand of the referee before whom the witness was required to testify. (Code Civil Pro., § 854, and Throop’s note to § 2444.) A person cannot be punished for disobeying a process issued without authority.

The order is reversed, with ten dollars costs and disbursements.

Hardin, P. J., and Yann, J., concurred.

Order reversed, with ten dollars costs and disbursements.