It' appears by the order from which the appeal was taken that the court found that the respondent was duly subpoenaed at Delmonico’s down-town restaurant in the borough of Manhattan on the 20th' day of March, 1909, to attend Trial Term, Part 14, of the Supreme Court,' at the county court house in the' county of. New York, on the 23d day of March, 1909, as’a witness for the defendants in an action then pending trial' in said court wherein one Simpson was plaintiff and the relators were defendants; that he • failed to appear pursuant to the command of the subpoena; that he was a material witness on the issues to be tried in said action, and that his failure to obey said subpoena was caloulaté3 to, defeat, impair, impede or prejudice the rights or remedies of the relators as -defendants in said action, but that it did not in fact defeat, impair, impede or prejudice their rights for the reason that they succeeded •in the action.
.On this adjudication, the learned court was not at liberty to fine the respondent with á view to. compensating the relators for actual damages sustained by the failure of t-lie witness to obey the subpoena, for no actual damages were shown; but -the court should have adjudged the respondent guilty of contempt and should *553have fined him the costs of the special proceeding to punish him for contempt, and a further sum, within the limitation prescribed by law, sufficient to compel respect for the dignity of the court and to serve as a lesson to the respondent and a warning to all others duly summoned as witnesses not to be remiss in their duty to obey the command of the subpoena. If witnesses are to escape punishment for contempt of court merely because the party in whose favor they were summoned happens to succeed'in the action, then our courts of justice, suitors, juries and witnesses will be delayed and litigants will be deprivéd in many instances of material evidence essential to sustain their claims. If it were to be declared- to be the law that the only risk a witness takes in disobeying a subpoena is- the possibility that the party in whose favor he is subpoenaed may be able to .show that his act was willful and constituted a criminal contempt of court (Code Civ. .Proc. § 8; now Judiciary Law [Consol. Laws, chap. 30; Laws of 1909, chap. 35], § 750), or that he has sustained actual damages resulting from the failure of the witness to attend court in obedience to the subpoena, then a large part of the time of attorneys will be occupied in drawing attachment papers, and the time of the courts and juries will be wasted awaiting the production of - witnesses by the sheriff. Such, however, is not the law in this State. By section 43 of title 3 of chapter 7 of part 3 of the Revised Statutes (2 R. S. 400), it was expressly declared that every person who should fail to attend court pursuant to the command of a subpoena duly issued and served upon him “without a reasonable excuse, shall be deemed guilty of a contempt of the court out of which such-subpoena issued,” and should be responsible to the aggrieved party for all damages sustained thereby and should forfeit- to him $50 in addition to the . actual damages; and by section 20 of title 13 of chapter 8 of part 3 of the Revised Statutes (2 R. S. 538) it was provided that if the court on contempt proceedings should adjudge the witness “guilty of the misconduct alleged,” and that it “ was calculated to, or actually did, defeat, impair, impede or prejudice the rights or remedies of any party ” the court should proceed to impose a fine or to imprison him, or both, as the nature of the case required. Section 21 of title 13 of chapter 8 of part 3 of the Revised Statutes (2 R. S. 538) provided that if actual loss or injury should.be shown, a fine should be imposed *554sufficient to indemnify tlie party and to cover the costs arid expenses, and section 22 of title 13 of chapter 8 of. part 3 of .the Eevised Statutes (2 E. S. -538) provided as follows: “In all other.cases the fine sliall not exceed two hundred and fifty dollars, over and above.the costs and;.expenses of. the .proceedings.” It' is- as cleár- as the English- language can make it, from these provisions, that it was intended by-the Legislature that the mere failure ;of a witness without, reason- ' able excuse to attend in obedience to a subpoena.should be deemed a contempt of court, even' though thé act was not.willful and, there-' fore, could not be punished' as a criminal contempt, and that in the • absence of proof of actual damage» the court was authorized to impose-a 'fine not exceeding $250, together .with the costs.and .expenses.Of the special- proceeding. We find a change in-the phrase ol'ogy in some respects when these provisions of the Eevised Statutes -' were enacted in the Code of Civil Procedure^ but tliey.are not such as to show an intention to change the substance of the law. Section 14 of the Code of Civil -Procedure, now section 753 of the Judiciary Law, which related to “Contempts punishable civilly,”'provided, so far aS material to the question now. under consideration, that a court-of record has power to punish by fine and imprisonment, or .either, a. neglect or violation of duty or other misconduct by which' .“a1.right or remedy of a party to "a civil action or speeia'l'-proceeding pending-in-the-court maybe defeated, impaired, impeded, ' or prejudiced, in' either of the following cases: * ' * *• A' person subpoenaed as a witness, .for refusing or neglecting to obey tlie' subpoena, or to attend, or to be sworn, or to answer as a witness.”- Section 2266 of the-Code of Civil. Procedure, now section' 754 of tlie Judiciary Law, provided, among other things, that an offense specified in,section 14 must be punished, as prescribed in title 3 of chapter 17 of the Code of Civil Procedure," which Was the title in which .said section 2266 was contained. Section 2281 of " the' Code of. Civil Procedure, now section 770 of the Judiciary Law, provided' that if it be 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 to 'an- action or special proceeding, brought in the court, or before : tlie judge or referee, the court, ju'dge. or referee must make a final' . order accordingly, and directing that he be punished by fine or. *555imprisonment,or both, as the nature of'the case requires.” Section 2284 of the Code of Civil Procedure, now section 773 of the Judiciary Law, provided that if an actual loss or injury be shown to have been caused by the misconduct, and it is not specially prescribed by law that an action may be maintained to recover dainages therefor, “a fine sufficient to indemnify the aggrieved party must be imposed upon the offender, and collected and paid over to the aggrieved party, under the direction of the-court.” That section further provided as follows : “ Where it is not shown that such an actual loss or injury has-been produced, afine must be imposed, not exceeding the amount of the complainant’s costs and expenses, and two hundred and fifty dollars in addition thereto, and must be collected and paid, in'like mánner.” It seems quite clear that the Legislature had- in mind two classes of cases, the one in which the failure of the witness to appear might defeat, impair, impede or prejudice-a right of the party, and the other in which such "failure actually did defeat, impair, impede or prejudice such right, and in both cases it was contemplated that the failure of the witness to appear should be deemed a contempt of court, as it had been previously expressly declared ; but in the absence of proof that such failure did actually defeat, impair, impede or prejudice the right of the party, and of the amount of the loss or injury, the court was, to be limited to imposing a fine of $250 and the" costs and expenses of the special proceeding.
The memorandum opinion of the learned justice, who presided at Special' Term indicates that he would have adjudged the . respondent guilty of contempt were it not for a dictum, in Socialistic. Go-Op. Pub. Assn. v. Kuhn, No. 2 (51 App. Div. 583), based on authorities cited, to the effect that proof of actual loss by the aggrieved party is essential to warrant an adjudication of contempt which correctly states the. rule with respect to an adjudication by which a fine Of more than $250 and the' costs and expenses of the proceeding is imposed, but is not a correct statement of the law applicable to other cases. It must, of course, in all cases be shown- and adjudged that the misconduct or violation of duty was such that it might have defeated, impaired, impeded or prejudiced a right or remedy of a party and that it either was calculated to or in fact did do so. When this is shown and duly determined by '.the *556court there is a basis for a fine to the extent of ,$250 and the costs . and expenses of the special proceeding. .The plain language of the statute must be given effect, notwithstanding the fact that many judges in discussing contempts in general or on facts quite different from those now before tlie^ court, have expressed the'opinion that actual damages must be shown in every case..
The material facts having been adjudicated adversely to the respondent, we deem it unnecessary to remit the case to the Special Term, and will modify tli.e order by inserting an adjudication that the respondent is guilty of contempt of court, and by imposing a proper fine. The only excuse offered by the respondent for his failure to obey the subpcena is that he claims that the original subpoena was not exhibited to him, and that he took the subpcena to his personal counsel for advice as to whether or not the subpcena was good, and that he was advised that it was a nullity, and that as he had-an important engagement in Chicago for the day on .which he was commanded by the subpcena to be in court, believing that the service was not good and that the subpcena was a nullity, he departed from the .jurisdiction of the court without intending any disrespect for the court. He does not, however, produce the affidavit of his counsel to corroborate his claim that such advice was given. . It appears that the respondent was-a member of the board of managers of the Hew York Cotton Exchange, and he was subpoenaed to prove the rules of the exchange. He was a man of affairs, and his failure to obey the subpoena was neither owing to ignorance of his diity.nor was it inadvertent or unavoidable. It is of course possible, but it is not probable, that a member-of the bar would take the responsibility of thus advising a witness to ignore a subpoena. The respondent should have known and doubtless knew that it was for the court, and not for his counsel, to decide whether or not the subpcena was properly served or was valid, and that such decision could not be- made on the facts as they appeared to him unless they were presented to the court. In taking the advice of counsel; if he was advised as he states, and departing from the jurisdiction of the court, he took the responsibility of an adverse decision by the court, and although he may have intended no willful disregard of the process of the court, yet, the' due- and prompt administration of-justice requires that he should be punished.
*557The. order is, therefore, modified by striking out the provisions thereof denying the motion to punish the respondent for contempt and discharging him from the custody of his counsel, and by inserting á provision ¡adjudging him guilty of contempt of court and fining him the sum of two hundred and fifty dollars, together with ten dollars costs and disbursements- on the appeal herein and. ten dollars costs of the motion, and directing that a warrant of commitment issue according to. law on his failure to pay the same forthwith ; and as so modified the order is affirmed..
Ingraham, P. J., Clarke, Scott and Miller, JJ., concurred.'
Order modified as directed in opinion, and as modified affirmed. Settle order on notice.