
    Langerman v. McAdam et al.
    (New York Common Pleas—General Term,
    January, 1894.)
    Where an order is made, in proceedings for contempt in refusing to appear for examination before trial, permitting the party to purge himself of the'contempt by submitting to the examination, and suspending the proceedings until the examination is concluded, then to be brought to a hearing, the party may, upon such hearing, be adjudged guilty of the contempt and required to pay a fine.
    The punishment, in such case, to be inflicted is dependent on his readiness to submit to the examination, and if the fine imposed is no more than a fair compensation for the trouble caused his adversary by his previous misconduct, the order will not be disturbed.
    By acquiescing in the order permitting him to purge himself of the contempt and submitting to the examination, the party concedes that he was guilty of contempt, and cannot thereafter question the regularity of any of the prior proceedings, except so far as they are proper to be considered in mitigation of punishment.
    Where a party does not -move to vacate an order for his examination before trial, but consents to proceed thereunder and submits to a partial examination, these acts amount to a waiver of any irregularity which might have been an answer to proceedings to punish for contempt.
    
      Appeal by defendant, George H. MeAdam, from an order of the Special Term of this court, entered August 1, 1893, adjudging him guilty of contempt and fining him thirty dollars, and from so much of an order of the Special Term of January 3, 1893, as adjudges the defendant guilty of contempt.
    The said defendant was ordered to appear before a referee on Hovember 9, 1892, for examination in behalf of the plaintiff, in order to enable the latter to frame his complaint in this action. The examination was postponed several times by consent until Hovember twenty-second, when the defendant appeared and was sworn and examined at length. The examination was then adjourned to a subsequent day, when defendant was again examined at length, and adjournments were had thereafter until December 1,1892, when defendant, by advice of counsel, omitted to appear before the referee.
    On December second the referee issued a summons to defendant to appear, whicli was disobeyed under advice of counsel. On December twelfth he was ordered by this court to show cause why .he should not be punished for contempt in disobeying the original order for examination and the summons of the referee, and, after hearing both parties, an order was made on January 3,1893, permitting the defendant to purge himself of his contempt in not appearing in obedience to the order and summons by submitting to a further examination before the referee, and further directing that the motion to punish him for contempt in the premises be suspended until his examination was concluded before the referee, then again to be brought to a hearing upon three days’ time.
    After the examination was concluded before, the referee a motion to punish for contempt was heard, and an order made on June 3, 1893, adjudging defendant guilty of contempt in failing to appear in obedience to the original order for examination and fining him thirty dollars therefor. The defendant appeals from such order, and from so much of the order of January 3, 1893, as adjudges him guilty of contempt
    
      
      George A. Stearns, for defendant (appellant).
    
      J. P. Berg, for plaintiff (respondent).
   Daly, Ch. J.

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 examination 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 acquiesced 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; Fleming v. Tourgee, 40 N. Y. St. Repr. 705.

The order should be affirmed, with costs and disbursements.

Bookstaver and Pryor, JJ., concur.

Order affirmed, with costs.  