Yorks, 32 How. 408; Kennedy v. Weed, 10 Abb. 62; Sudlow v. Knox, 7 Abb. N. S. 411; Kiernan v. Abbott, 1 Hun, 109; Bowen v. Hunter, 45 How. 193; Central Nat. Bank of N. Y. e. Arthur, 2 Sweeny, 194; Mitchell's Case, 12 Abb. 249, C. P.; Matter of Hackley, 24 N. Y. 74; Foster v. Townshend, 2 Abb. N. C. Ct. App.; People v. Holdridge, 4 Lans. 511; People v. Dewitt, 3 Johns. Cas. 568; Hull v. L'Eplattiner, 49 How. 500; 8. c., 5 Daly, 534; Matter of Lynch, 5 Paige, 120; West Side Bank . Pugsley, 12 Abb. N. S. 28; s. c., 47 N. Y. 368; Wolf v. Jacobs, 36 N.Y.Super. Ct. 468; People v. Rogers, 2 Paige, 103; Taggard v. Talcott, 2 Edw. Ch. 628; Ross r. Clussman, 3 Sandt. 676; Fenner v. Sandburn, 37 Barb. 610; People v. Sturtevant, 9 N. Y. 263; Wilmerdings r. Fowler, 14 Abb. N. S. 249; Matter of Kelly, 62 N. Y. 198; 3 Hun, 636; People v. Vail, 2 Cow. 623; Matter of Nichols, 54 N. Y. 62; Conover e. Wood, 6 Duer, 682; Mayor v. Pendleton, 64 N. Y. 623; Watson v. Fuller, 9 How. 425; Batterman e. Finn, 32 How. 501; Bergh's Case, 16 Abb. Pr. N. S. 266; Klugman's Case, 49 How. 484; Bernard v. Leo, 7 Da. Reg. 1069, 1213; McComb v. Weaver, 11 Hun, 271; McKelsey v. Lewis, 3 Abb. N. C. 61.

$ 2267. When punishment may be summary. Where the offence is committed in the immediate view and presence of the court, or of the judge or referee, upon a trial or hearing, it may be punished summarily. For that purpose, an order must be made by the court, judge, or referee, stating the facts which constitute the offence, and bring the case within the provisions of this section, and plainly and specifically prescribing the punishment to be inflicted therefor.

2 R. S. 535, 2(2 Edm. 554); see 2 1018, ante. Matter of Hackley, 24 N. Y. 74: 24 How. 369; 12 Abb. 150; 21 How. 54; Matter of Percy, 2 Daly, 530.

2268. When warrant to commit may issue without notice. Where the offence consists of a neglect or refusal to obey an order of the court, requiring the payment of costs, or of a specified sum of money, and the court is satisfied, by proof, by affidavit, that a personal demand thereof has been made, and that payment thereof has been refused or neglected; it may issue, without notice, a warrant to commit the offender to prison, until the costs or other sum of money, and the costs and expenses of the proceeding, are paid, or until he is discharged according to law.

Id., 4, amended by L. 1847, ch. 390, 2 (4 Edm. 630). See Ford v. Ford, 10 Abb. N. S. 74; People v. Cowles, 3 Abb. Ct. App. 507; 8. C., 4 Keyes, 38; Matter of Watson, 5 Lans. 466; People v. Campbell, 40 N.Y. 133; see Lansing v. Lansing, 4 Lans. 377; Matter of Smethhurst, 3 Code R. 55; s. c., 2 Sandf. 724; 4 How. 369; Albany City Bank v. Schermerhorn, 9 Paige, 372; McCredie v. Senior, 4 id. 378; Pitt v. Davison, 37 N. Y. 235 s. c., 3 Abb. N. S. 398; 34 How. 355; People v. Bergen, 6 Hun, 267; Fisher v. Raab, 9 W. Dig. : 56 How. 218.

2269. Order to show cause, or warrant to attach offender. The court or judge, authorized to punish for the offence, may, in its or his discretion, where the

case is one of those specified in either of the last two sections, and, in every other case, must, upon being satisfied, by affidavit, of the commission of the offence, either

1. Make an order requiring the accused to show cause before it, or him, at a time and place therein specified, why the accused should not be punished for the alleged offence; or

2. Issue a warrant of attachment, directed to the sheriff of a particular county, or, generally, to the sheriff of any county where the accused may be found, commanding him to arrest the accused, and bring him before the court or judge, either forthwith, or at a time and place therein specified, to answer for the alleged offence

Id., 3 and 5, amended. Power e. Village of Athens, 19 Hun, 165; Ackroyd Ackroyd, 3 Daly, 38; De Witt . Fennis, 30 How. 131; Matter of Smethhurst, 3 Code R. 55; s. c.. 2 Sandf. 724; 4 How. 369; People r. Campbell, 40 N. Y. 133; Albany City Bank e. Schermerhorn, 9 Paige, 52; McCredie . Senior, 4 id. 378; Pitt e. Davison, 37 N. Y. 225; 8. c., 3 Abb. N. S. 398; 31 How. 355; Ward . Arenson, 10 Bosw. 59: People r. Murphy, 1 Daly, 462; Thaule r. Ritter, 13 Abb. N. S. 539; Kelly . MeCormick, 28 N. Y. 313; Matter of Nichols, 51 id. 62; Bowling Green Sav. B'k r. Todd, 52 id. 489.

§ 2270. Notice to delinquent officer to show cause. Where it is prescribed by law, or by the general rules of practice, that a notice may be served in behalf of a party, upon a sheriff or other person, requiring him to return a mandate, delivered to him, or to show cause, at a term of a court, why he should not be punished, or why an attachment should not be issued against him, for a contempt of the court; the party, in whose behalf the notice is served, may, at the time specified therein, file with the clerk, proof, by affidavit or other written evidence, of the delivery of the mandate to the accused; of the default or other act, upon the occurrence of which, he was entitled to serve the notice; of the service of the notice; and of the failure to comply therewith. Thereupon the proceedings are the same, as where an order to show cause is made, and it, and a copy of the affidavits upon which it is granted, are served upon the accused.

Id., 6. Matter of Smethhurst. 2 Sandf. 724; 8. c., 3 Code R. 55; 4 How. 369: Thaule v. Ritter, 13 Abb. N. S. 439; Pitt v. Davison, 37 N. Y. 235; 34 How, 355; 3 Abb. N. S. 398; 4 Trans. App. 266; Albany City Bank v. Schermerhorn, 9 Paige, 372; McCredie v. Senior, 4 id, 378; see People v. Campbell, 40 N. Y. 138.

§ 2271. Order or warrant; when granted out of court. Where the order to show cause, or the warrant, is returnable before the court, it may be made, or issued, as prescribed in the last section but one, by any judge authorized to grant an order without notice, in an action pending in the court; and it must be made returnable at a term of the court, at which a contested motion may be heard.

New. 267.

Pitt v. Davison, 39 N. Y. 235; 2273; People v. Bergen, 6 Hun,

2272. Id.; when contempt was committed before a referee. An order to show cause may be made, or a warrant may be issued, as prescribed in section 2269 of this act, by a referee appointed by the court, where the offence is committed upon the trial of an issue referred to him, or consists of a witness's non-attendance, 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. New. See 1018, ante. Case of Seeley, 6 Abb. 217, note; Lathrop v. Clapp, 40 N. Y. 328.

§ 2273. Effect of order to show cause, and of warrant. An order to show cause may be made, either before or after the final judgment in the action, or the final order in the special proceeding. It is equivalent to a notice of motion; and the subsequent proceedings thereupon are taken in the action or special proceeding, as upon a motion made therein. A warrant of attachment is a mandate, whereby an original special proceeding is instituted against the accused, in behalf of the people, upon the relation of the complainant.

New. Pitt v. Davison, 37 N. Y. 235; Brinkley v. Brinkley, 47 N. Y. 40: see ante, 190, subdiv. 2; Albany City Bank v. Schermerhorn, 9 Paige, 372; Brush v. Lee, 1 Abb. Ct. App. 238: Matter of Smethhurst, 3 Code R. 35; s. c.. 4 How. 369; 2 Sandf. 724; People v. Nevins, 1 Hill, 154; 154; People v. Teft, 3 Cow. 340; People v. Kerny, 2 Hun, 346.

§ 2274. Copy affidavit, etc., to be served with warrant. A copy of the warrant, and of the affidavit upon which it is issued, must be served upon the accused, when he is arrested by virtue thereof.

Id., 3. Pitt v. Davison, 37 N. Y. 235; 8. C., 3 Abb. N. S.398; 34 How. 355; Albany City Bank v. Schermerhorn, 9 Paige, 372; Barton v. Butts, 32

How. 456; Ward v. Arenson, 10 Bosw. 589; Neafle's Case, 4 C. H. Rec. 168; Matter of Smethhurst, 2 Sandf. 724.

§ 2275. Indorsement upon warrant.- Where a warrant of attachment is issued, the court, judge, or referee, may, in its or his discretion, by an indorsement thereupon, fix a sum, in which the accused may give an undertaking for his appearance to answer.

Id., 10, amended. Matter of Watson, 3 Lans. 408; Bank of Buffalo r. Boughton, 21 Wend. 57; People v. Munro, 21 Wend. 57.

2276. Warrant; how executed. If an indorsement is not made upon the warrant, as prescribed in the last section; or if such an indorsement is made and an undertaking is not given, as prescribed in the next section; the sheriff after making the arrest, as required by the warrant, must keep the accused in his custody, until the further direction of the court, judge, or referee. Where, from sickness or any other cause, the accused is physically unable to attend before the court, judge, or referee, that fact is a sufficient excuse to the sheriff for not producing him as required by the warrant. In that case, the sheriff must produce him, as directed by the court, judge, or referee, after he becomes able to attend. The sheriff need not, in any case, confine the accused in prison, or otherwise restrain him of his liberty, except as far as it is necessary so to do, in order to secure his personal attendance. Id., 12, 14 and 37. People v. Nevins, 1 Hill, 154; People v. Teft, 3 Cow. 340; Pitt v. Davison, 37 Barb. 97; s. c., 3 Abb. N. S. 398; 34 How. 355; Albany City Bank v. Schermerhorn, 9 Paige, 372.

2277. Undertaking to procure discharge. Where an indorsement is made upon the warrant, as prescribed in the last section but one, the accused must be discharged from arrest, upon his executing and delivering to the sheriff, at any time before the return day of the warrant, an undertaking to the people, in the sum specified in the indorsement, with two sufficient sureties, to the effect that he will appear, at the time when, and the place where, the warrant is returnable, and then and there abide the direction of the court, judge, or referee, as the case requires. The officer, taking the acknowledgment of the undertaking, must, if the sheriff so requires, examine under oath, to a reasonable extent, the persons offered as sureties, concerning their property and circumstances.

Id., 13, amended. Marlon v. Campbell, 14 Abb. 410; 8. c. 37 Barb. 179; Matter of Watson, 3 Lans. 408; Kelly v. McCormick, 28 N. Y. 318; People v. Munro, 21 Wend. 57.

§2278. When habeas corpus may issue.-If the accused is in the custody of a sheriff, or other officer, by virtue of an execution against his person, or by virtue of a mandate for any other contempt or misconduct, or a commitment on a criminal charge, a warrant of attachment cannot be issued. In that case, the court, upon proof of the facts, must issue a writ of habeas corpus, directed to the officer, requiring him to bring the accused before it, to answer for the offence charged. The officer to whom the writ is directed, or upon whom it is served, must, except in a case where the production of the accused under a warrant of attachment would be dispensed with, bring him before the court, and detain him at the place where the court is sitting, until the further order of the court.

Id., 7,9; and see 2013, ante. Anonymous, 22 Wend. 635; People v. Cowles, 3 Abb. Ct. App. 507; s. c., 4 Keyes, 38.

§ 2279. Sheriff to file undertaking with return.-The sheriff or other officer must file the undertaking, if any, taken by him, with the return to the warrant or writ of habeas corpus.

Id., 16.

§ 2280. Interrogatories and proofs.- When the accused is produced, by virtue of a warrant, or a writ of habeas corpus, or appears upon the return of a warrant, the court, judge, or referee, must, unless he admits the offence charged, cause interrogatories to be filed, specifying the facts and circumstances of the offence charged against him. The accused must make written answers thereto, under oath, within such reasonable time as the court, judge, or referee allows therefor; and either party may produce affidavits, or other proofs, contradicting or corroborating any answer. Upon the original affidavits, the answer, and subsequent proofs, the court, judge, or referee must determine, whether the accused has committed the offence charged.

Id., 19. Mayor, etc., v. N. Y. & S. I. F. Co., 64 N. Y. 622: Lathrop . Clapp, 40 id. 328; 8. c., 23 How. 423; Pitt v. Davison, 37 N. Y. 235; People v. Cartright, 11 Hun, 362; Watson v. Fitzsimmons, 5 Duer, 629; Matter of Percy, 2 Daly, 530; Brush v. Lee, 6 Abb. N. 8. 50; People v. Campbell, 40 N. Y. 133; New York v. N. Y. & Staten Island Ferry Co. 8 J. & Sp. 300; Leland v. Smith, 3 Daly, 309; Brown v. Andrews, 1 Barb.