184 N.Y. 458 | NY | 1906
The plaintiff, a member of the Rochester Musicians' Protective Association, an unincorporated association, was suspended from his membership. Thereupon he brought this action against the defendant, as president of the association, alleging the illegality of the action of the association which resulted in his suspension and prayed judgment for a mandatory injunction ordering that he be reinstated as a *460 member in good standing and restraining the defendant from taking further steps towards the prosecution of the plaintiff and from suspending or expelling him, and from denying to him any of the benefits of membership in the association and preventing or attempting to prevent members of the association by threats, persuasion, speech, writing or otherwise, from working with or for the plaintiff, and also for damages on account of his suspension. On this verified complaint an injunction was granted; the injunction order, the disobedience of which is the subject of this proceeding, was granted by a judge of the court ex parte, but with an order to show cause why it should not be continued. The material part of the order is the following: "That he, they (agents, servants, etc.) and each and every one of them do absolutely desist and refrain from denying to the plaintiff any of the benefits of membership in said Rochester Musicians' Protective Association, from suspending or expelling the plaintiff, from taking further steps towards the prosecution of the plaintiff for the alleged violation of Article 13, Section 14, of the By-laws of said Association, from preventing or attempting to prevent members of said Association by threat, persuasion, speech, writing or otherwise from working with or for the plaintiff in his profession, from preventing or attempting to prevent the plaintiff obtaining work in his profession, from threatening other members of said Association with expulsion, suspension or fines if they work for or with the plaintiff; and on motion of O'Brien O'Brien, plaintiff's attorneys, the defendant as President of said Rochester Musicians' Protective Association, it is further.
"Ordered, under the penalties by law prescribed, that he immediately reinstate said plaintiff as a member in good standing of said Rochester Musicians' Protective Association; and that the defendant as such President take no steps whatever to deny to said plaintiff all and every privilege of membership in said Association pending the further order of this court in the premises; and let the defendant show cause at a Special Term of this court, to be held at the Court House, in the City *461 of Rochester, on the 6th day of May, 1905, why the injunction order herein granted should not be continued pending the determination of this action. Dated May 3, 1905."
Thereafter the plaintiff instituted these proceedings to punish the defendant for contempt on affidavits tending to show that the defendant had violated the injunction order in many respects. Counter affidavits were submitted by the defendant. The learned Special Term acquitted the defendant of the charge of disobedience in every respect but one. As to the exception, it found that the "defendant wholly failed, neglected and refused to reinstate the plaintiff as a member in good standing of said defendant association in violation of said order." It also found that such disobedience prejudiced the rights of the plaintiff and imposed a fine upon the defendant of the sum of $160, to be paid to the plaintiff as indemnity. This order was affirmed by the Appellate Division, which has allowed an appeal to this court and certified two questions: "First. Was that portion of the original injunction order granted by a Justice of the Supreme Court on the third day of May, 1905, which required the defendant association immediately to reinstate the plaintiff as a member in good standing, void? Second. Can the defendant, an unincorporated association, be convicted of a contempt of court upon the facts appearing in the record herein?"
It is to be first observed that the proceeding before us is to punish the defendant, not for a criminal contempt, but for a civil contempt. In the first class of contempts punishment is imposed for the outrage on the majesty of the law and the authority of the court, and any fine goes to the people. In the second case the proceeding is instituted for the violation of the private right, and a fine is imposed to be paid to the plaintiff as indemnity for the violation of that right. (People ex rel.Munsell v. Court of Oyer and Terminer,
"2. Where it appears, by affidavit, that the defendant, during the pendency of the action, threatens, or is about to remove, or to dispose of his property, with intent to defraud the plaintiff, an injunction order may be granted, to restrain the removal or disposition." In the present case the defendant being a voluntary association, the action for reinstatement was properly brought in equity, though as to a corporation the remedy would be by mandamus. But reinstatement in the association was the final relief sought. So far as the complaint sought to restrain the enforcement of his suspension against the plaintiff, the case falls within section 603, and the court had power to restrain by temporary injunction the same acts which, were the plaintiff successful, would be restrained by a final judgment, but that in no way includes reinstatement, which so far from being restrained would be enforced by the final judgment. No authority for the order of reinstatement is to be found in the first subdivision of section 604, because that is confined to the commission of acts which tend to render the judgment ineffectual. The second subdivision is not relevant to the subject before us. While, however, the language of the Code in terms authorizes an injunction only against the commission of acts, still it is doubtless within the power of a court of equity in proper cases to issue mandatory injunctions, and the provisions of the Code should not be so strictly construed as to deny that power in any case. But while such power may exist it is by no means unlimited, and when it exceeds the limit it is not a mere error, but void as without jurisdiction. It has been well said by Judge COOLEY: "The court of chancery has no more power than any other to condemn a man unheard, and to dispossess him of property prima facie his, and hand over its enjoyment to another on an ex parte claim to it." (Arnold v. Bright,
It is suggested by counsel, based on a statement in the affidavit of the defendant in answer to the proceedings to punish him for contempt, that members of the union would not work with the plaintiff unless he was actually reinstated, even though the association should recognize his rights and obey the injunction of the court. There is no suggestion, however, of this character to be found in the complaint on which exclusively the injunction was granted. If there had been presented any proof, or even if there were an allegation in the complaint that a mere restraining order, however fully obeyed, would be practically inoperative to maintain the status of the plaintiff unless accompanied by a temporary reinstatement in the association and the court or judge had ordered a temporary reinstatement pending the hearing or trial, a different question would be presented. There is no such question, however, in the present case. Indeed, if the defendant or the association which he represented had assumed to make some qualified or limited reinstatement of the plaintiff his liability to punishment for contempt would have been the same as at present for he would have failed to comply with the mandate of the court. True, had he done so the court might have looked on his offense more leniently. That, however, would have been merely a matter of favor. There is presented to us in this case not the question of favor but of legal right.
If the court had no authority to grant the order which the defendant is charged with violating, that he cannot be punished as for a civil contempt is settled by authority, whatever *467
may be the rule in the case of a criminal contempt. (People exrel. Morris v. Randall, supra; Gardner v. Gardner, supra;People ex rel. Cauffman v. Van Buren, supra.) In Matter ofSawyer (
The orders of the Appellate Division and of the Special Term should be reversed and the motion to punish for contempt denied, with costs in this court and ten dollars costs of motion. The first question certified should be answered in the affirmative. The second need not be answered.
O'BRIEN, HAIGHT, VANN, WERNER and WILLARD BARTLETT, JJ., concur; HISCOCK, J., not sitting.
Orders reversed, etc.