Opinion
July 11, 1918.
Edward E. McCall of counsel [ Garrard Glenn and William B. Walsh with him on the brief; Shattuck, Glenn, Huse Ganter, attorneys], for the appellant.
Frank M. Van Wagonen of counsel [ Griggs, Baldwin Baldwin, attorneys], for the respondent.
The order appealed from is one granted ex parte, from which no appeal lies. ( Stewart v. Stewart, 127 App. Div. 672; Belfer v. Ludlow, 144 id. 746; Moore v. American Molasses Co., 179 id. 505.) The proper practice for the appellant to pursue is to move to vacate the order adjudging him in contempt, and, if the motion is denied, an appeal would lie from the order entered upon the decision of such motion. As there is a serious jurisdictional point involved, in order to prevent further fruitless appeals, the matter having been twice before this court ( 182 App. Div. 918, 922), it seems appropriate to state that the practice pursued in the attempt to enforce obedience to the writ of habeas corpus has been entirely irregular and that the order, made without notice to the appellant, adjudging him in contempt and ordering his imprisonment, was unauthorized. The proper proceedings in such a case are distinctly specified in section 2028 of the Code of Civil Procedure.
The appeal is dismissed, with ten dollars costs and disbursements.
CLARKE, P.J., LAUGHLIN, SMITH and PAGE, JJ., concurred.
Appeal dismissed, with ten dollars costs and disbursements to respondent.