#### In the Matter of John O’Byrne, App’lt.

*(Supreme Court, General Term, First Department,*

*Filed January 24, 1890.)*

Contempt—Court will not review order to aid one who is a fugitive in another state.

Appellant was adjudged in contempt for refusing to answer certain questions as a witness. He avoided arrest and took up his residence out of the state. *Held,*that the court would not review the proceedings against him while he remained a fugitive in another state, avoiding and defying its authority.

Appeal from an order denying a motion to set aside a commitment issued against John O’Byrne, the.appellant.

*Donohue, Newbombe, Cardozo, Gurber*& *Landon,*for app’lt; *Thomas P. Wickes,*for resp’t.

*117Daniels, J.

The appellant, John O’Byrne, was required to answer certain questions propounded to him, in an investigation proceeding before the commissioners of accounts. He refused to answer, and for that refusal a commitment was issued against him by one of the justices of this court The object of the commitment was to imprison him until he should answer these questions. He was not arrested under the commitment, but moved to discharge it as unauthorized. In answer to this motion it'was shown that he had left this state, and taken up his residence in Jersey City, in the state of Hew Jersey, there to remain until this proceeding shall be heard and concluded. The fact itself has been proved by the affidavits used to resist the motion. And their force was not overcome by what he himself has sworn to. For his absence from this city, the place of his former residence, has been clearly shown, together with the further circumstance that he with his wife are boarding at a hotel in Jersey City. He may, it is true, return occasionally to this city, but there is no reason for believing that he has at any time in that manner encountered any danger of arrest under the commitment. The decided probability on the contrary is that on these occasions he has taken care not to meet the officer whose duty it has become to arrest him. As the circumstances have been shown, no substantial doubt can exist as to the reason inducing the appellant to make this change in the place of his residence. It was as the affiant Fitzgerald has stated it to be, and that is to remain out of the state until the matter of his attempted arrest has been carried through the courts.

This was a conclusive answer to the motion made in his behalf. For the court will not aid him in reviewing the proceedings against him while he remains a fugitive in another state, avoiding and defying its authority. *People*v. *Genet,*59 N. Y., 80; affirming 1 Hun, 292; *McMonagle*v. *Conkey,*14 id., 326; *Keenan*v. *O'Brien,*53 id., 30; 23 N. Y. State Rep., 478. If that is not his condition the best proof he can make of the fact is to present himself to the officer who holds, and whose duty it is, to arrest him on the commitment. Until that shall be done, it may reasonably be held that his absence has been induced by what he stated to Mr. Fitzgerald and that is to remain away until his liability to arrest has been decided by the courts. That he is at liberty to do, but the courts will not in the meantime endeavor to abridge his absence by either hearing or sustaining the applications which may be made in his behalf. The order should be affirmed, with ten dollars costs, together with the disbursements, but without prejudice to a renewal after the appellant shall submit himself to the jurisdiction of this court. court.

Van Brunt, P. J. and Brady, J., concur.