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ROBERT A. KILBY ET AL. v. HOWARD FREEDMAN ET AL. (10/10/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT


October 10, 1968

ROBERT A. KILBY ET AL., PLAINTIFFS,
v.
HOWARD FREEDMAN ET AL., APPELLANTS, AND DANIEL RHOADES, RESPONDENT. ROBERT A. KILBY ET AL., APPELLANTS, V. HOWARD FREEDMAN, DEFENDANT, AND HAROLD E. PELLER, RESPONDENT

Concur -- Steuer, J. P., Capozzoli, Tilzer, Rabin and MeNally, JJ.

By order to show cause, defendant Peller seeks to hold Daniel Rhoades, the attorney for the plaintiff, in contempt of court for an alleged assault said to have been committed at Special Term, Part II, during an examination of defendant Peller, before trial. Rhoades, denying the assault and in effect alleging an assault upon him, but in any event alleging conduct that would justify holding the defendant Peller in contempt, cross-moves for such relief against Peller. Inasmuch as questions of fact have been raised that have to be resolved in order to determine where the fault lies, if indeed there is sufficient fault to be found to justify holding either one, or both, in contempt, a hearing must be ordered. Accordingly, the matter is remanded for that purpose.

Disposition

Order entered May 27, 1968 unanimously reversed on the law and on the facts, without costs or disbursements, and the matter is remanded to Special Term for the purpose of conducting a hearing in accordance with the memorandum of this court.

19681010

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