
    George Floyd Vingut and Others, as Trustees, etc., Respondents, v. Henry B. Sire, Appellant.
    First Department,
    July 10, 1914.
    Contempt — process—personal service of order to show cause — general appearance by attorney.
    A defendant cannot be adjudged guilty of contempt of court in failing to appear and submit to an examination concerning his property where the order to show cause was not served upon him personally but was served upon an attorney who represented him upon an appeal from a prior order.
    
      It seems, the appearance of the attorney upon the appeal from the order extending the receivership was not a general appearance.
    Appeal by the defendant, Henry B. Sire, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York, adjudging defendant guilty of contempt of court in failing to appear and to submit to an examination in proceedings supplementary to execution, and. fining him therefor the sum of $250.
    
      Franklin Bien, for the appellant.
    
      Sidney L. Josephthal, for the respondents.
   McLaughlin, J.:

The defendant appeals from an order adjudging him guilty of contempt of court in failing to appear and submit to an examination concerning his property as he had been directed to do by a prior order of the court and imposing a fine upon him therefor of $250. '

The order to show cause why he should not be adjudged guilty of contempt and punished therefor was never personally served upon the defendant. It was, however, served upon the attorney who represents him upon this appeal. This attorney had never put in a general appearance in the proceeding. It appears that an order had been made in the proceeding extending the receivership and this attorney had, on behalf of the defendant, taken an appeal therefrom. It is claimed by the respondents that the notice of appeal thus signed by the attorney was equivalent to a general appearance and for that reason the service upon him of the order to show cause was sufficient.

I do not think it was equivalent to a general appearance. It was an appearance simply for the purpose of the appeal, but even though it be considered a general appearance in the proceeding, the defendant could not be punished for contempt by the service of an order to show cause why he should not be adjudged guilty of contempt by service upon the attorney. Before he could be so adjudged the order to show cause had to be personally served upon him. (Code Civ. Proc. § 2451.)

The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, P. J.,' Scott, Dowling and Hotchkiss, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  