Watrous v. . Kearney

79 N.Y. 496, 1880 N.Y. LEXIS 21

• Court: New York Court of Appeals
• Decided: January 13, 1880
• Status: Published

Opinion

Rapallo, J.

The order appealed from affirmed an order of the Special Term denying a motion by the appellants to set aside or open an order imposing upon them a fine for contempt in violating an order of injunction. The motion was founded on allegations that the order was erroneous in various respects, and also that attorneys had appeared for the appellants without their authority, in the attachment proceedings. The attorney who appeared on the return of the attachment makes affidavit that he was authorized by the appellants so to clo, and it seems that they were personally present at the time, and the same attorney appeared for them on the subsequent proceeding before the referee to whom lit was referred to take proofs. In so far as the motion is founded upon the merits, or upon alleged legal en ors, those can only be brought before this court by appeal from the the final order. To this the appellants answer that they could not appeal from the final order because it was entered on default. It appears however that it wa® entered on notice to Messrs. Smith, Bancroft & Moak, who had not only appeared for the appellants in the action, but who had as their attorneys admitted service of a copy of the referee’s report and of notice of the-motion thereon for the final order. They thus undertook to represent them on that motion, and the mere allegation of want of authority to do so docs not invalidate the order. The appellants having been personally brought into court on the attachment, they could be represented by attorney in the subsequent proceedings. The plaintiff’s proceedings to punish for the alleged contempt appear to have been regular and it was discretionary with the court below whether or not to open or vacate the order on motion.

The appeal should he dismissed with costs.

All concur,

Appeal dismissed.