Langerman v. McAdam

Where a party is required to show cause why he should not be punished for contempt in failing to appear for examination and an order is made by which he is permitted to purge himself of the contempt by submitting to the examination and the motion to punish him is suspended until his examination is concluded, then to be brought to a hearing, he may upon such hearing be adjudged guilty of the contempt and required to pay a fine. The plain construction and intendment of the order is that the question of the extent of the punishment to be inflicted is dependent upon his readiness to submit to the examina*402tion and to obey the mandate of the court and if the fine subsequently imposed is no more than a fair compensation for the trouble caused his adversary by his previous misconduct no ground for assailing the order exists. By acquiescing in the order permitting him to purge himself of contempt by submitting to the examination, the defendant concedes that he was guilty of the offense and cannot be permitted thereafter to question the regularity of any of the prior proceedings, except in so far as they were proper to be considered in mitigation of punishment, and as it appears that the facts were laid before the court and a light fine was imposed the order will not be disturbed.

But if the appeal from the order of January 3, 1893, may be deemed to bring up for review the propriety of said order notwithstanding the defendant has aquiesced therein and submitted to the examination ordered thereby, it is only necessary to say that he could not and cannot be heard to contest the regularity and sufficiency of the order which he had disobeyed for the reason that he never moved to vacate it, but on the contrary treated it as-regular by consenting to proceed under it, to postpone and adjourn the hearing before the referee and finally by partly submitting to the examination required by it. These acts constitute a. complete waiver of all irregularities which might have been an. answer to the proceedings to punish for contempt. Roberts v. White, 73 N. Y., 375; Amberg v. Kramer, 10 N. Y.. Supp., 302; 32 St. Rep., 177; Matter of Fleming v. Tourgee, 40 St. Rep., 705.

Order affirmed, with costs and disbursements.