Oakley v. Cokalete

Gaynor, J.

I have carefully read the papers, upon this motion, and much regret what they disclose, and that I have to take notice of it. No objection is presented to their regularity or sufficiency, nor is any defect in them pointed out, but the motion is argued and submitted upon facts disclosed, upon the merits.

The order to show cause was retained by the defendant’s attorney, but the stay in it was intentionally disregarded. If it was irregular, and he did not wish to abide by it, he was free to apply • ex parte to the judge who made it to' vacate it; or to the court, but only upon notice, for the same relief. Code Civ. Pro., § 772. Instead, he chose to disregard it, and move the case for trial. To get the court at the same time to vacate the stay of the order to show cause without notice added to his misconduct. -Koehler v. Farmers & Drovers’ Bank, 17 Civ. Pro. 307.

The only suggestion in the nature of an excuse which has been made is that the stay of the order to show cause violated Rule 37, and did not have the effect of staying the trial; but that rule in plain terms relates only to Trial Terms. It does not embrace Special Terms, and before its recent amendment it only embraced Circuits and the Trial Terms of Superior City Courts. The Constitution, the Code of Civil Procedure and the Rules of Practice, all specify Special Terms and Trial Terms, and show, that each designation has its meaning, and that neither includes the other. That the order to show cause was for more than eight days was not contrary to the said rule, nor to section 780 of the Code.

I also regret to notice the extraordinary affidavit of the clerk deputized to attend at the Westchester December term of the court, and prefer to believe that it was an act of forgetfulness or inadvertence upon his part.

The motion to punish for contempt is granted, and let the attorney pay a fine of $100, or stand committed to the county jail for ten days.

Motion granted.