
    Edward Haynes, App’lt, v. Edward Hatch, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1891.)
    
    Contempt—Service op order.
    To authorize the maintenance of proceedings for contempt in failing to appear pursuant to an order it must he shown that the order was served upon the party; service on his attorney is not sufficient.
    
      (MeCaulay v. Palmer, 40 Hun, 38; 2 St. Rep., 600, followed.)
    Appeal from order denying motion to punish the defendant for contempt
    On April 27, 1891, Mr. Justice Bartlett made an order requiring defendant to appear on May 6, 1891, before Charles A. Peabody, Jr., Esq., for examination before trial.
    This order was served personally on defendant
    On May 2, 1891, Mr. Justice Cullen made an order to show cause, returnable on May 5, 1891, why said order of April 27 be not vacated, with a stay of plaintiff’s proceedings until the hearing and decision of the motion to vacate.
    On May 8, 1891, Mr. Justice Pratt made an order denying said motion to vacate said order of April 27, with a stay of plaintiff’s proceedings pending defendant’s appeal to the general term from such order.
    On July 8, 1891, an affirmance by the general term of said order of Mr. Justice Pratt was duly entered.
    This order was served on defendant’s attorney. It was not served on defendant
    On July 8, 1891, an order was made by Mr. Justice Cullen requiring defendant to appear on July 10, 1891, before said Charles A. Peabody, Jr., Esq., the referee named in the original order of Mr. Justice Bartlett
    This order was served on defendant’s attorney. It was not served on defendant
    On May 6, said referee adjourned the examination of defendant to May 13, later to May 27, later to July 10, 1891.
    The defendant has never appeared before the referee. His attorney has not appeared except once, on J uly 10, 1891, and then only to object to the sufficiency of the service of the order of Mr. Justice Cullen requiring defendant to appear before the referee on July 10, 1891.
    On July 13, 1891, Mr. Justice Cullen made an order to show cause why defendant be not punished for contempt for failing to appear for examination on the aforesaid dates.
    On J uly 24, 1891, Mr. Justice Cullen made an order denying said motion to punish defendant for contempt
    
      Deming & Logan (Chas. M. Demond, of counsel), for app’lt; Henry Tompkins, for resp’t
   Pratt, J.

We think the court below correctly held this case to be controlled by McCaulay v. Palmer, 40 Hun, 38; 2 St Rep., 600.

It follows that the order appealed from must be affirmed.

After an attorney has appeared in an action it may well be that a service upon him should be sufficient upon which to base proceedings for contempt against the client. But such change in the practice must be made by the legislature.

Order affirmed, without costs.

Barnard, P. J., and Dykman, J., concur.  