¶1While I am in accord with much of what is set forth in the majority opinion, I am unable to agree procedurally with the disposition. Service of the subpoena and the return date fixed therein was at a time while Congress was *299in session. Such a subpoena carried with it the possibility of arrest in the event of disobedience. The constitutional provision (U. S. Const., art. I, § 6) grants immunity from arrest to members of Congress while Congress is in session with certain specified exceptions not material here. In my view prior to adjudicating respondent in contempt as the court has done, a directive should have issued fixing a date for respondent’s appearance subsequent to the adjournment of Congress in default of which respondent could then have been adjudged in contempt. The record on appeal is scanty, the briefs of no value, and the issue posed by reason of time of service, the status of respondent, and the constitutional provision heretofore referred to not entirely free from doubt (cf. People ex rel. Hastings v. Hofstadter, 258 N. Y. 425, 430; Long v. Ansell, 293 U. S. 76; Bartlett v. Blair, 68 N. H. 232). A judgment of arrest, though its execution be deferred, as here, may by its very nature inhibit proper performance of legislative duties. This is one of the objects sought to be avoided by the immunity from arrest provision.
¶2Botein, P. J., McNally and Bastow, JJ., concur with Steuer, J.; Stevens, J., dissents in opinion.
¶3Order, entered on September 9, 1966, modified, on the facts and the law and as a matter of discretion, without costs or disbursements, so as to find respondent guilty of a civil contempt and to punish him by a fine of $250 and a jail sentence of 30 days.