Motion to commit defendant for contempt, in not paying the sum of $250, directed by the order of Dec. 9, 1861. The defendant has- been brought up on attachment. Interrogatories, and defendant’s answers- thereto, have been filed. There was an order of reference-to take defendant’s answers to the interrogatories, and such proof in support of, and in opposition to the answers, as each party should adduce.
The answers to the interrogatories having been filed the plaintiff moves for a commitment, and proposes to read affidavits in opposition to such answers.
Defendant opposes the motion, on the following grounds:
I. That he was not shown the signature of a judge, or of the clerk, to any order requiring him to pay.
2. That there was no personal demand.
3. That the agent who made the demand exhibited no written authority.
4. That defendant’s neglect to pay arises solely from absolute poverty.
*1325. That no affidavit can be used in opposition to defendant’s answers to interrogatories.
As to the point that affidavits contradicting answers to the interrogatories cannot be read, I think defendant is in error. Where there has been no reference to a master under the former system, or a reference under the present, to take the answers to the interrogatories, and such proofs in support of and contradictory to such answers as either party might adduce, the court, on the coming in of the answers to the interrogatories, is not only authorized, but bound to receive such affidavits as may be adduced either in support of, or in opposition to the answers. Although the court, in such case, is bound to receive affidavits, still, if the affidavits presented are such as to make ft apparent to the court that an oral examination of the affidavits is necessary, an order of reference to take such examination may be required. The present case requires no such reference.
Considering, then, the affidavits read by the plaintiff in opposition to the answers to the interrogatories, as well as the answers themselves, I am clearly of opinion that a copy of the order requiring the payment of the sum of $250 was personally served on the defendant; a certified copy, having the signature of the clerk of this court thereon, being at the same time shown defendant; and demand of payment was made on defendant personally by a person duly authorized by written authority, who exhibited his written authority at the time; and that defendant’s neglect to make payment arises from a wilful disobedience of the order, and not from absolute poverty.
The order in question being a special-term order, and entered with the clerk of this court, the service of a copy of it, a certified copy of the original order under the hand of the clerk being shown at the same time, is sufficient service, under the principle of Hull a. Thomas (3 Edw., 236; approved in People a. Sturtevant, 9 N. Y., 278), to bring the party into contempt.
Motion granted.