Reynolds agt. McElhone. the premises, and forbidding the sale or transfer or disposition of, or any interference with any of their property, except that exempt from execution. This order was never revoked or altered. Prior to the time of appearance in part, and after it in part, the defendants, in violation of the terms of this order, paid over certain moneys in their hands, amounting to some eighteen dollars in all, in part to their counsel, and in part to one of their creditors. On the day of appearance, (the 2d of May.) the defendants appeared at the office of Judge Low, (the county judge,) at the hour of 10 A. M., and finding the office unoccupied, and after waiting some time left and returned home, being advised by their counsel that the order had become inoperative by the failure of Judge Low to appear at the hour appointed. On the same day, they paid over to their counsel a portion of the money. Shortly after they left, and within an hour of the appointed time, it does not distinctly appear how soon after ten, Judge Low returned to his office, from which he had been temporarily absent. The plaintiff's counsel also appeared and the case was proceeded with in the absence of the defendants, and by order referred to a referee to take the testimony and to examine the parties at an appointed time and place, continuing or renewing the injunction against any disposition of their property. At this time and place, the defendants appeared in conformity with the order, (which had been served upon them,) and were examined before the referee. The referee subsequently on the 8th of May, made an order or appointment for the further examination of the defendants and for their appearance before him for that purpose, on the 9th of May. This order or appointment was duly served on the defendants, but they failed to appear. The proceedings before the referee were duly reported to the county judge, and the foregoing facts in regard to their appropriation of their property in alleged violation of one or both of said orders, of the 28th of April, and 2d of May, being established by the Reynolds agt. McElhone. proofs, the county judge made an order thereon, the material part of which is as follows: "And it is further ordered that the said defendant, William McElhone, shall pay over to the plaintiff's attorney for the plaintiff, in the above entitled action, the sum of $18, being money that he has paid out and disposed of since the order made by me on the 28th day of April, restraining him from disposing of his said property was duly served on him, and whilst the said order remained in full force and unrevoked, and that in default of payment of the said money as aforesaid, the said William McElhone be committed to the common jail of Sullivan county, there to remain until the same shall be paid." It is clear that the defendants violated the order of the judge, forbidding any interference with or disposition of their property. The order of the 28th of April, to that effect was never revoked, nor did it become inoperative, I think, even if the subsequent proceedings fell through. Until an actual or a practical revocation, it continued to operate. The adjournment, the delay, the suspension of the proceedings made it no less proper that they should not dispose of their property to the prejudice of their creditors. I think, also, the proceedings were never suspended, and never fell through. The temporary absence of Judge Low, from his office for a few minutes after ten, did not justify the defendants in leaving or treating the proceeding as abandoned. A reasonable time must be allowed for the judge to reach his office. and the plaintiff to appear, and I do not think that time had elapsed, when the defendants disappeared. The proceedings were, therefore, properly continued by the judge on the 2d of May, and the order of reference and new injunction was valid. If not so, I think it was waived by the subsequent appearance of the defendants and submission to the order. I am not satisfied whether the referee had the power to resummon the defendants, if he had closed or announced that he had closed the examination. The evidence is not Reynolds agt. McElhone. quite satisfactory, whether the examination of the defendants had been regarded as ended on the 7th of May. I do not regard the point as material to be determined because no testimony was subsequently taken, and the omission of the defendants to appear on the adjourned day was not the basis upon which the judge's order of commitment was founded. The material question in the case is whether the final order contains the requisite materials to justify the commitment of the defendants to jail, that is, whether it shows substantially a contempt, and the infliction of punishment for it by way of fine to the amount of $18. And although this is not very clearly expressed, I feel inclined to regard it as on the whole sufficient. The recital of facts, especially when taken in connection with the accompanying papers, shows that the party was convicted by the finding of the court of having paid away $18 in violation of the order. This was a contempt, whether so declared by name or not. For that reason, because the party had been guilty of contempt, the judge orders the defendant to pay that amount for the plaintiff's benefit, and in default of payment, to be committed to jail. The result is a fine to that amount, although not so denominated in terms on the face of the order. As the defendant is plainly guilty of a contempt, and the order is a just one on the merits, and can be upheld, I think, without the violation of a legal principle, I am in favor of affirming the order of the county judge, with $10 costs of appeal. People ex rel. Savage agt. Board of Health New York. SUPREME COURT. THE PEOPLE ex rel. Jas. SAVAGE agt. THE BOARD OF HEALTH OF THE CITY OF NEW YORK. A certiorari will not be allowed to review questions of jurisdiction of a legislative character possessed by the board of health of the city of New York, even though they might exceed the powers vested in them. New York General Term, February, 1861. CLERKE, SUTHERLAND and INGRAHAM, Justices. THIS case arises on a return to a certiorari directed to the board of health of the city of New York, commanding them to return to this court, certain proceedings before them, "by which they adjudged, adjudicated, and determined, that the business carried on by the relator, in depositing manure on lots between First avenue and East river, and Thirty-eighth and Thirty-ninth streets, was a nuisance." The writ also called for a return whether any complaint was made to the board of health, as to the same. The return shows that the city inspector made a communication on the subject to the board of health, and that thereupon a resolution was passed, on the 4th of June, directing the nuisance to be abated; and that on the 11th of June the board passed resolutions declaring such depositing of manure in any lot in the city limits, a nuisance, except in places designated by the city inspector. CHATFIELD & HADLEY, for relator. HENRY H. ANDERSON, for respondents. By the court, INGRAHAM, Justice. The counsel for the relator has argued before us, the question of the expediency of the action of the board of health in passing the resolutions complained of. With that question we have nothing People ex rel. Savage agt. Board of Health New York. to do. If the legislature have authorized the board of health to legislate upon these subjects, the power to legislate necessarily involves the exercise of discretion; and no court can review such acts when passed in matters within the jurisdiction of the body to which those powers have been intrusted. It is also contended that the board of health has no power to declare any trade or occupation carried on within the limits of the city to be a nuisance. By the act of 1850 (2 R. S., 5th ed., p. 13,) the city inspector of the city of New York, under directions from the board of health, is authorized to cause any matter or thing which may be dangerous to the public health to be removed or destroyed at the expense of the owner. The board is also authorized to perform certain duties therein specified, for the purpose of promoting or preserv ing the public health, and authority is given to the city inspector, on notice to the offending party, in conjunction with the board of health, to take measures for the removal of nuisances detrimental to the public health. But I find no authority in any of the statutes vesting in the board of health authority to declare any particular business a nuisance. The same act (Laws of 1850, p. 597, §2, on p. 608) gives such power to the mayor, aldermen and commonalty of the city. They have full power to pass by-laws and ordinances declaring what they deem necessary for the preservation of the public health, and for the abatement of all nuisances; and, by section three, to cause such nuisances to be abated at an expense to be charged to the parties or the owners of the lots where the nuisance exists. After such legislation by the common council of the city of New York, the city inspector is charged with the duty of enforcing such laws and ordinances, and for such purpose may notify the offending party to show cause before the board of health, which body may then make an order in the matter, which is final and conclusive. But none of |