
    The People ex rel. William B. Baldwin, Appellant, v. Caroline M. Miller, otherwise known as Mettie Rodman and Mrs. Brink, Respondent.
    (New York Common Pleas—General Term,
    June, 1894.)
    A referee who is appointed to report testimony with his opinion has; power to punish a witness for contempt in refusing to answer questions.
    An affidavit is not necessary as a foundation for contempt proceedings where the offense was committed in the immediate view and presence of the court or referee.
    Where the matter has proceeded to a warrant of arrest, the method of procedure is fixed and mandatory, and the court, judge or referee has, no power to allow the accused to purge himself of the contempt without making recompense to the injured party.
    Appeal from an order of this court at Special Term in contempt proceedings.
    
      Frank Moss, for appellant.
    
      E. F. James and J. C. J. langbein, for respondent.
   Bookstaver, J.

The defendant refused to answer certain questions after the referee, before whom she was being examined, had pronounced them proper and had warned her that her refusal was contempt of court. In his report of the circumstances the referee says: “ On fourteen distinct occasions the" witness contumaciously, with marked contempt and defiance, and against the warning of the referee, refused to_ answer proper and material questions.” That this language is none too strong is easily seen from one of the defendant’s remarks (characteristic of the spirit she manifested throughout the hearing so far as reported to us) in response to a proper question, “ Well, I think I will go home.”

The referee subsequently issued a warrant of attachment directing the sheriff to arrest the accused and bring her before the court at a time specified to answer for the alleged offense. Upon the return day the court directed the defendant to appear before the referee and answer the questions, and continued the proceedings to a subsequent date. Complainant’s counsel opposed any final disposition of the contempt proceedings by such direction, and it was stipulated that he waived no right by appearing again before the referee and asking the questions. The defendant then gave replies to all but three of the questions, which she refused to- answer as tending to incriminate her. Thereafter, the court, by a final order, acquitted her of the charge of contempt upon the ground that she had purged herself therefrom by her subsequent responses.

In his argument her counsel contends that the referee, being appointed .under section 1015 of the Code of Civil Procedure to report testimony and his opinion thereon in an incidental issue, was without power to punish a witness for contempt, which is given by section 1018 only to referees appointed thereunder, but it is unnecessary to decide the question upon this ground, because we think a referee in a case like the present is clearly' vested with such power by section 2272, as follows: “An order to show cause may be made, or 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 offense is committed upon the trial of an issue referred to him, or consists of a witness’ nonattendance, 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.”

Counsel for defendant also argues that the foundation for the proceeding must, under section 2269, be an affidavit; but this obviously cannot be required where the offense was committed in the immediate view and presence of the court or referee, as was done here. Matter of Hackley, 24 N. Y. 74. In fact, the referee might have proceeded summarily under section 2267 to punish the offense. He certainly then had the lesser power to issue the warrant of attachment returnable before the court.

The complainant’s counsel takes the ground, and correctly, we think, that the court could not, as the matter stood, permit the accused to purge herself without making reparation as provided by sections 2281 and 2284. Section 2280 declares that “ When the accused is produced by virtue of a warrant, etc., * * * the court, judge or referee must determine whether the accused has committed the offense charged,” and section 228 L, “If it is determined that the accused has committed the offense charged, and that it was calculated to, or actually did, defeat, impair, impede or prejudice the rights or remedies of a party, * '* " the court, judge or referee must make a final order accordingly, and directing that he be punished by fine or imprisonment, or both, as the nature of the case requires. A warrant of commitment must issue accordingly.” Section 2284 provides for the amount of the fine. As we understand these sections, after the matter, has proceeded to a warrant of arrest the method of procedure is fixed and mandatory; no locus yposnitenticB remains to the offender, nor any power to the court, judge or referee of allowing the guilty one to purge himself of the contempt without making recompense to the injured party; and this is proper because, as appears from the language of section 2281, referring to “ rights and remedies of a party,” it is then not alone the dignity of the court which is to be considered (an offense against which the court might at any time forgive, in its discretion), but also a substantial right of the aggrieved party, as in this case the fees to the sheriff and additional fees of the referee and stenographers and counsel, not to mention the delay and consequent loss owing to the peculiar features of the case, all of which have been incurred by the complainant (and some have been disbursed) through the fault of the defendant.

The order must, therefore, be reversed, with costs to the appellant, and the matter sent back to the Special Term to impose such fine as the case may warrant.

Halt, Ch. J., and Bischoff, J., concur.

Order reversed, with costs to appellant.  