$2266. In a case specified in section fourteen of this act, 82 Hun, 242 or in any other case where it is specially prescribed by law, that a court of record, or a judge thereof, or a referee appointed by the court, has power to punish, by fine and imprisonment, or either, or generally as a contempt, a neglect or violation of duty, or other misconduct; and a right or remedy of a party to a civil action or special proceeding pending in the court, or before the judge or the referee, may be defeated, impaired, impeded, or prejudiced thereby, the offence must be punished as prescribed in this title. 2267. Where the offence is committed in the imme- 9 Misc. 3. diate view and presence of the court, or of the judge or referee, upon a trial or hearing, it may be punished summarily. For that purpose, an order must be made by the court, judge, or referee, stating the facts which constitute the offence, and bring the case within the provisions of this section, and plainly and specifically prescribing the punishment to be inflicted therefor. 2268. Where the offence consists of a neglect or refusal to obey an order of the court, requiring the pay. ment of costs, or of a specified sum of money, and the court is satisfied, by proof, by affidavit, that a personal demand thereof has been made, and that payment thereof has been refused or neglected; it may issue, without notice, a warrant to commit the offender to prison, until the costs or other sum of money, and the costs and expenses of the proceeding, are paid, or until he is discharged according to law. 2269. The court or judge, authorized to punish for the offence, may, in its or his discretion, where the case is one of those specified in either of the last two sections, and, in every other case, must, upon being satisfied, by affidavit, of the commission of the offence, either: 1. Make an order, requiring the accused to show cause before it, or him, at a time and place therein specified, why the accused should not be punished for the alleged offence; or 2. Issue a warrant of attachment, directed to the sheriff of a particular county, or, generally, to the sheriff of any county where the accused may be found, commanding him to arrest the accused, and bring him before the court or judge, either forthwith, or at a time and place therein specified, to answer for the alleged offence. § 2270. Where it is prescribed by law, or by the general rules of practice, that a notice may be served in behalf of a party, upon a sheriff or other person, requiring him to return a mandate, delivered to him, or to show cause, at a term of a court, why he should not be punished, or why an attachment should not be issued against him, for a contempt of the court; the party, in whose behalf the notice is served, may, at the time specified therein, file with the clerk, proof, by affidavit or other written evidence, of the delivery of 13 Civ. Pro. 183. 48 Hun, 586. 90 Hun, 426. 21 App. Div. 6 Dem. 358. 609. 32 Hun, 228. 46 Id. 320. 74 Hun, 194. 74 Hun, 194. 82 Hun, 228. 155 N.Y. 255. the mandate to the accused; of the default or other act, upon the occurrence of which, he was entitled to serve the notice; of the service of the notice; and of the failure to comply therewith. Thereupon the proceedings are the same, as where an order to show cause is made, and it, and a copy of the affidavits upon which it is granted, are served upon the accused. 2271. Where the order to show cause, or the warrant, is returnable before the court, it may be made, or issued, as prescribed in the last section but one, by any judge authorized to grant an order without notice, in an action pending in the court; and it must be made returnable at a term of the court, at which a contested motion may be heard. § 2272. An order to show cause may be made, o a warrant may be issued, as prescribed in section two thousand two hundred and sixty-nine of this act, by a referee appointed by the court, where the offence is committed upon the trial of an issue referred to him, or consists of a witness's non-attendance, or refusal to be sworn or to testify, before him. The order or warrant may, in the discretion of the referee, be made returnable before him, or before the court. Where it is made returnable before the referee, he has all the power and authority of the court, with respect to the motion or special proceeding, instituted thereby. § 2273. An order to show cause may be made, either before or after the final judgment in the action, or the final order in the special proceeding. It is equivalent to a notice of motion; and the subsequent proceedings thereupon are taken in the action or special proceeding, as upon a motion made therein. A warrant of attachment is a mandate, whereby an original special proceeding is instituted against the accused, in behalf of the people, upon the relation of the complainant. 2274. A copy of the warrant, and of the affidavit upon which it is issued, must be served upon the accused, when he is arrested by virtue thereof. § 2275. Where a warrant of attachment is issued, the court, judge, or referee, may, in its or his discretion, by an indorsement thereupon, fix a sum, in which the accused may give an undertaking for his appearance to answer. § 2276. If an indorsement is not made upon the warrant, as prescribed in the last section; or if such an indorsement is made and an undertaking is not given, as prescribed in the next section; the sheriff, after making the arrest, as required by the warrant, must keep the accused in his custody, until the further direction of the court, judge, or referee. Where, from sickness or any other cause, the accused is physically unable to attend before the court, judge, or referee, that fact is a sufficient excuse to the sheriff for not producing him as required by the war rant. In that case, the sheriff must produce him, as directed by the court, judge, or referee, after he becomes able to attend. The sheriff need not, in any case, confine the accused in prison, or otherwise restrain him of his liberty, except as far as it is necessary so to do, in order to secure his personal attendance. $2277. Where an indorsement is made upon the warrant, as prescribed in the last section but one, the accused must be discharged from arrest, upon his executing and delivering to the sheriff, at any time before the return day of the warrant, an undertaking to the people, in the sum specified in the indorsement, with two sufficient sureties, to the effect that he will appear, at the time when, and the place where, the warrant is returnable, and then and there abide the direction of the court, judge, or referee, as the case requires. The officer, taking the acknowledgment of the undertaking, must, if the sheriff so requires, examine under oath, to a reasonable extent, the persons offered as sureties, concerning their property and circumstances. or 2278. If the accused is in the custody of a sheriff, other officer, by virtue of an execution against his person, or by virtue of a mandate for any other contempt or misconduct, or a commitment on a criminal charge, a warrant of attachment cannot be issued. In that case, the court, upon proof of the facts, must issue a writ of habeas corpus, directed to the officer, requiring him to bring the accused before it, to answer for the offence charged. The officer to whom the writ is directed, or upon whom it is served, must, except in a case where the production of the accused under a warrant of attachment would be dispensed with, bring him before the court, and detain him at the place where the court is sitting until the further order of the court. § 2279. The sheriff or other officer must file the undertaking, if any, taken by him, with the return to the warrant or writ of habeas corpus. § 2280. When the accused is produced, by virtue of a 9 Misc. 3 warrant, or a writ of habeas corpus, or appears upon the return of a warrant, the court, judge, or referee, must, unless he admits the offence charged, cause interrogatories to be filed, specifying the facts and circumstances of the offence charged against him. The accused must make written answers thereto, under oath, within such reasonable time as the court, judge, or referee allows therefor; and either party may produce affidavits, or other proofs, contradicting or corroborating any answer. Upon the original affidavits, the answers, and subsequent proofs, the court, judge, or referee must determine, whether the accused has committed the offence charged. § 2281. If it is determined that the accused has committed the offence charged; and that it was calculated to, 87 N.Y. 521 50 N. Y. 1 or actually did, defeat, impair, impede, or prejudice 2282. Where the accused is brought up by virtue of a writ of habeas corpus, he must, after the final order is made, be remanded to the custody of the sheriff, or other officer, to whom the writ was directed. If the final order directs that he be punished by imprisonment, or committed until the payment of a sum of money, he must be so im prisoned or committed, upon his discharge from custody under the mandate, by virtue of which he is held by the sheriff, or other officer. § 2283. Upon the return of an order to show cause, the questions which arise must be determined, as upon any other motion; and, if the determination is to the effect specified in the last section but one, the order thereupon must be to the same effect as the final order therein prescribed. Upon a certified copy of the order so made, the offender may be committed, without further process. § 2284. If an actual loss or injury has been produced to a party to an action or special proceeding, by reason of the misconduct proved against the offender, and the case is not one where it is specially prescribed by law, that an action may be maintained to recover damages, for the loss or injury, a fine, sufficient to indemnify the aggrieved party, must be imposed upon the offender, and collected, and paid over to the aggrieved party, under the direction of the court. The payment and acceptance of such a fine constitute a bar to an action by the aggrieved party, to recover damages for the loss or injury. Where it is not shown that such an actual loss or injury has been produced, a fine must be imposed, not exceeding the amount of the complainant's costs and expenses, and two hundred and fifty dollars in addition thereto, and must be collected and paid, in like manner. A corporation may be fined as prescribed in this section. 2285. Where the misconduct proved consists of an omission to perform an act or duty, which it is yet in the power of the offender to perform, he shall be imprisoned only until he has performed it, and paid the fine imposed. In such a case, the order, and the warrant of commitment, if one is issued, must specify the act or duty to be performed, and the sum to be paid. In every other case, where special provision is not otherwise made by law, the offender may be imprisoned for a reasonable time, not exceeding six months, and until the fine, if any, is paid; and the order, and the warrant of commitment, if any, must specify the amount of the fine, and the duration of the imprisonment. $2286. Where an offender, imprisoned as prescribed in this title, is unable to endure the imprisonment, or to pay the sum, or perform the act or duty, required to le paid or performed, in order to entitle him to be released, the court, judge, or referee, or, where the commitment was made as prescribed in section two thousand four hundred and fiftyseven of this act, the court, out of which the execution was issued, may, in its or his discretion, and upon such terms as justice requires, make an order directing him to be discharged from the imprisonment. § 2287. A person, punished as prescribed in this title, may, notwithstanding, be indicted for the same misconduct, if it is an indictable offence; but the court, before which he is convicted, must, in forming its sentence, take into consideration the previous punishment. 2288. Where a person, arrested by virtue of a warrant of attachment, has given an undertaking for his appearance, as prescribed in this title, and fails to appear, on the return day of the warrant, the court may either issue another warrant, or make an order, directing the undertaking to be prosecuted; or both. § 2289. The order, directing the undertaking to be prosecuted, may, in the discretion of the court, direct the prosecution thereof, by and in the name of any party aggrieved by the misconduct of the accused. In such a case, the plaintiff may recover damages, to the extent of the loss or injury sustained by him, by reason of the misconduct, together with the costs and expenses of prosecuting the special proceeding in which the warrant was issued; not exceeding the sum specified in the undertaking. 2290. If no party is aggrieved by the misconduct of the accused, the order must, and, in any case where the court thinks proper so to direct, it may, direct the prosecution of the undertaking, by the Attorney-General, or by the district-attorney of the county in which it was given, in the name of the people. In an action, brought pursuant to the order, the people are entitled to recover the entire sum, specified in the undertaking. Out of the money collected, the court, which directed the prosecution, must direct that the person, at whose instance the warrant was issued, be paid such a sum as it thinks proper, to satisfy the costs and expenses incurred by him, and to compensate him for any loss or injury sustained by him, by reason of the misconduct. The residue of the money must by paid into the treasury of the State. 2291. After the return of an execution, issued upon a judgment, rendered in an action upon the undertaking, an action, to recover the amount of the judgment, may be maintained against the sheriff, where it appears that, at the time when the undertaking was given, the sureties were insufficient, and the sheriff had reasonable grounds to doubt 29 Hun, 302 41 Id. 351. 39 Id. 646. |