Berry v. Midtown Service Corporation
104 F.2d 107
2d Cir.
1939
Check Treatment

*1 107 аttorney’s injunc fees under right holding claim a state court irrelevant, tion bond is proven. Even if be viewed since we the letters struing to- a bond exacted showing plaintiffs malice under a federal stat that the bore Mulvane, 497, might be ute. See Tullock 184 wards the and as such v. U.S. defendant 512, 372, 22 similar S.Ct. 46 L.Ed. Nor 657. has the considered some evidencе that pre- changed by seek the rule been feeling prompted them to Erie Railroad Co. v. Tompkins, 78, 817, 64, es- 304 82 liminary injunction, proof of another U.S. 58 S.Ct. 1188, element, probable namely, lack of sential L.Ed. 1487. See 114.A.L.R. Travel pre- Skeer, cause, granting Casualty supra, 24 The ers’ Mut. Co. v. F. absent. Supp. Hence, liminary injunction upon oрposing for at notice to 806. the claim appeal, disallowed, parties, though torney’s on fees a like even reversed must be prima probable fate must befall at least facie evidence the claim cost Smith, 1, appeal printing cause. Burt 181 N.Y. 73 N.E. briefs on v. the defendant’s 495, 576, preliminary injunction. 2 dismissed from the Ann.Cas. 121; 37, 129, 51 L.Ed. U.S. 27 S.Ct. unnecessary We think it review in Co., Donnally Brewing 87 W. Fairmont v. damages detail several other items of 494, granting of a Va. S.E. 778. by special claimed the defendant. The appeal, despite on injunction, reversal final report master’s demonstrates the failure probable cause. evidence is conclusive prоof damages as to each. And since no & S. IT. Co. Live Stock L. Crescent proved, we charg no error in Union, 141, S.Ct. v. Butchers’ U.S. ing the defendant with the costs of ref 614; Brandenberg Addi- 472, v. 30 L.Ed. Hamburg-American erence. Hohorst v. son, 442, In the Ky. 298 S.W. 1091. Co., C.C.S.D.N.Y., Packet Ever ex- injunction was less bar final case at Co., ‍‌‌‌​‌​‌​‌​‌​‌​‌‌‌‌‌‌‌​‌‌​​‌​​​​​‌‌​‌​‌​​​‌​‌​‌​‌‍est v. Buffalo Lubricating Oil C.C.N.D. temporary injunction. tensive than the N.Y., 31 F. 742. injunction was temporary Even probable cause to prima facie evidence Decree affirmed- in- the final relief not sue for accorded was introduced that junction, no evidence case. prima facie overcame such damages The second item relates attornеys’ Necessary expenses in fees. procuring at curred torney bring vacation of an in about the directly improvi junction result seem, logically, it would dent issuance “damages” be deemed sustained should injunction. But the BERRY v. MIDTOWN SERVICE COR Supreme laid down Court has law as PORATION et al. Spain, long been otherwise. Oelrichs v. No. 307. 211, 21 Tullock Mul L.Ed. Wall. vane, 22 S.Ct. 46 L.Ed. 184 U.S. Appeals, Circuit Court Second Circuit. statute, 28 U.S.C.A. May 29, 1939. mandatory posting of makes now payment “conditioned bond be in costs and curred,” light be construed must Supreme Court had definition which the language similar in in previously given to exacted the courts in junction bonds Subsequent of discretion. exercise of the statute three the еnactment district applied the former rule. have courts Co., D.C.S.C., Union Mercantile Farmers’ 102; Travelers’ Casualty Mut.

26 F.2d Co. Skeer, D.C.E.D.Mo., F.Supp. 805; County, Power Co. Greenwood Duke D. C.W.D.S.C., F.Supp. 419. The fact that permits York recovery New the law

CLARK, Judge, dissenting. Circuit ‍‌‌‌​‌​‌​‌​‌​‌​‌‌‌‌‌‌‌​‌‌​​‌​​​​​‌‌​‌​‌​​​‌​‌​‌​‌‍Tyson, of Tyson New York & Tyson, R. Medina Frank L. (Harold counsel; City, of York I. Sid- of New both ney Worthman, City, on the of New York appellant. brief), for Weitzner, of New York Kaufman & Kaufman, Weitzner, City (Samuel Emil H. Lynton, York Harold New and City, S. appellees. counsel), SWAN, CLARK, CHASE, and Before Judges. Circuit SWAN, Judge. present brought against Corporation recover Service

Midtown wrongful death for the plaintiff’s husband an accident caused park оperated amusement in an judg- The trial resulted defendant. was entered ment rep- on June attorney of its insurance resented who, verdict, carrier after rendition of the pose nothing time allow ‍‌‌‌​‌​‌​‌​‌​‌​‌‌‌‌‌‌‌​‌‌​​‌​​​​​‌‌​‌​‌​​​‌​‌​‌​‌‍asked question broadly above. as stated After appeal. whether determine between discussion some judg In terms the restrained the granted. stay was day twenty counsel only. She contends ment creditor judg- stay the of such period During implication ordered the *3 it also substantially of itself denuded debtor ment impair nothing intended debtor to do vari- transferring them to by all assets its rights judgment; under that trans her the the corporations. Thereafter ous affiliаted proof rendering execution fers the debtor requiring the order plaintiff an obtained by implied of or were a violation it sev- their transferor, transferees the aided and der and transferees that the why officers, cause to show eral 'violation; with result in such the abetted contempt for civil a be fined should not appellees committed a that the sus- of the of extent court the tempt of court. These contentions The mat- by judgment creditor. tained the Ad support cases. some in New York Inch, who heard ter was v. Zeller, Works, Dye vance 150 Piece Inc. op- supporting and upon stay, granted the 908, 487; v. Misc. 270 Silverman N.Y.S. motion, thе He denied posing affidavits. 35, Co., Realty 154 276 N.Y. Seneca Misc. here, the facts “On the statement with the 466; 835, Long, v. S. 154 Misc. Jedeikin by proceeding any, if is not remedy, 278 N.Y.S. 464. such decisions must But order contempt.” From the punish for light be 753 of read the section appealed. denial, has the Judiciary (Consol.Laws, 30) Law c. which contempts very definеs civil broad lan strenuously appellees Although the any guage. event New York cases can the which transactions assert that the upon be controlling not federal courts the its assets parted with judgment debtor power punish contempt whose for is defeat purpose to a were motivated not limited by fеderal a statute. we judgment, plaintiff’s the collection of provisions of The relevant the federal purposes of contrary shall the for assume 385, statute, now 28 U.S.C.A. read as fol- question presented is decision. Thus the power lows : “The said courts shall have a a who obtains whether debtor * * * punish, imprison- or fine stay giving bоnd without execution ment, court, at the discretion of the con- during stay execution makes himself tempts authority. of their Such contempt of court. proof, commits a punish contempts shall not be construed to upon lays some stress any except cases extend the misbehavior stay granted. was which ocсurred when the any person presence, in their or so near objected At that her counsel time thereto as obstruct the administration day stay stated that he thirty usual * * * justice disobedience the defendant had been informed that ** * by any party, or resistance “financially irresponsible.” Counsel juror, witness, person or оther law- replied he did not that the defendant writ, order, rule, decree, process, ful or they will responsibility, but “know about command of This the said courts.” sec- anyhow. thirty days be in business tion, and the earlier statutes sum They Luna Park won’t close derived, it is have been to re- construed regard remarks mer We these time.” statutory strict within thе limits of the prediction a the defend no more than that language contempt powers of the dis- stay likely to in business ant would be Robinson, parte Ex 19 Wall. trict stipu 511, 205; They 505, were not a 510, stated. 22 L.Ed. v. W. Bessette Co., 324, 326, 24 so; Conkey B. S.Ct. 194 U.S. that it would lation made Cir., 997; 665, Probst, 2 205 L.Ed. may whether well be doubted although it F. 512. be different the result would Buskirk, parte Ex so construed. See plain com is the conduct It Furthermore, Cir., is there plained case at bar of as a proof appellees knew of the presence of is misbehavior colloquy, although some knew of “or so near thereto as to obstruct judgment, and the debtor at justice.” is true that administration of It knowledge bеyond chargeable removal reach least wilful subject pending stay attorney representing matter of obtained court’of a appeal put pending Accordingly, or destruction an the trial. we suit it authority proposition- stands as contempt. Lamb Cram a constitute 715; 315, 217, prosecution er, 76 L.Ed. 52 S.Ct. U.S. Clay request Savings Bаnk the defendant does not River Merrimack ,to 527, 295, impliedly 55 L. Center, refrain from dis- S.Ct. 219 U.S. Ann.Cas.1912A, posing pendency of his during United assets 320, Ed. stay. of the We can see no basis for Shipp, 27 S.Ct. dis- 203 U.S. States v. Clay tinction prosecution between 8 Ann.Cas. L.Ed. stay of re- Cir., Waters, decisions F. 385. But spect to the matter under consideration. the case do not control such as these equal Other federal cases show an insist- bar, not con present since the party ence nor must have violated an property; any specific cerned with pun- court order he can impaired before would an be defeated *4 for contempt ished under the final clause of its judgment debtor’s transfer the of Buskirk, Cir., parte section Ex money judg of the assets rendition Corp. ‍‌‌‌​‌​‌​‌​‌​‌​‌‌‌‌‌‌‌​‌‌​​‌​​​​​‌‌​‌​‌​​​‌​‌​‌​‌‍Slope County, F. Dakota contempt contempt, if there ment. Hence Cir., Morgan F.2d United of the be, statute; clause must turn the final on States, Cir., 95 F.2d 830. only federal case to óur which at already stay of As noted the support tention has givеs been called that express or command no contained to Judge the Fleet’s deci Van judgment In the debtor. directed to the sion Dillon, in Lineker v. D.C. F. Probst, Cir., 205 F. case There, stay N.D.Cal. of execu during a analogous situa- dealt with this court tion judgment debtor, the the with assist Probst, against whom an in- There tion. banks, ance of the officers of convert two voluntary petition bankruptcy been in tangible ed her assets cash and the into left filed, bankruptcy court obtained from the state, taking money the with her. prosecution staying of an action an order banks and knowing their officers who had pending against him in the which was ’ ly property beyond aided in putting the stay applying for Court. the reach of the creditor were held possession Probst stated he was contempt, guilty grounds of the one bankruptcy his all the assets listed in upon which result was reached was this subject holding to schedules and (275 page 470) follows : stated as period During orders of court. “ stay disposed of these he of some * * * stay This order was not a proceeds and used assets -the thereof defendants, right matter of but was expenses. Upon living these facts the purely discretionary with the court and applied bankruptcy creditors to the court only intended rights maintain the of the for an order in con- adjudging to be parties quo in statu pending steps for a tempt. judge The district so held and im- new trial or might be ad- fine, reversed, posed parties charged a which this vised.- Both were as mat- * “* * ter of law with saying, knowledge pur- 205 F. 513: a this pose, and rightfully that neither was writ, Our attention has called to no been liberty during the existence of the order order, rule, decree, process, or command steps * * * impair to take intended to disobeyed. of the he has rights of the under judgment; other may highly ruling; This be a technical but things plainly implied these were as Congress where has been so industrious to from this though order as written into it powers restrict natural inherent of a terms. court, scrupulous fedеral attention imposed limitations it has would seem therefore, “When, respondents un- proper be the course.” dertook judgment nugatory to render this and valueless lending their aid to re- might Whether different result only tangible move property of the have been theory reached on the beyond debtor the reaсh of bankrupt’s assets were within the cus process, guilty were violating tody of the his conduct court and amounted though order as it had for- the court’s subject-matter a removal of the of the terms, positive acts and un- bidden their litigation it, pending before we need not principles well-established their acts der say. Waters, Clay Cir., contempt Cf. 178 F. (cid:127)constituted maybe, ceremony 385. However -idle Probst case Courts not sit

Ill sons judg- right we think Inch was pronouncing making orders contempt holding proceedings be of which ments, enforcement appropriate remedy. im- not the obstructed, with flouted, violated tribunal power punity, with courts, equally punish Thеse the offender. CLARK, Judge (dissenting). state, possessed of with those of the agree I ample power administration protect with that is said in the hampered opinion justice being necessity thus as to the some “order” or “command” Nor is this interfered with. the court to afford a Code basis for proceedings, yet wise limited section Judicial 385]). question still U.S.C.A. the result and believe the (Comp.St. § [28 * *» * case should be returned for findings full fact as to the nature and extent of the respect views Despite our property transfers debtor. agree Fleet, we are unable Judge Van That there was definite command of the one directed opinion that а his all; court seems admitted ques- the sole implication into expanded by party can tion is whether it binds The authorities other. an order further proceedings or binds also Before so far. do not extend cites he the defendant quo. maintain the status punishment subject to person should be *5 No formal entered, order was and hence court, or command violating a the nature of the command must be deduc- as terms him in definite inform der should ed colloquy from the of counsel and the him. imposed upon thereby the duties to court. colloquy That was not limited to ex an principle that adopt the we Once quoted the statements opinion. in the Aft- implica party carries one order to press er the verdict defendant’s counsel asked other, it upon the imposed duties tions stay; plaintiff’s for a objected counsel to a upon the limits set be difficult to would stay; long said, and the usually “We policy is wiser it We believe doctrine. give thirty days them sixty and days to the disobedi contempt only punish as to make plaintiff’s a case.” Then counsel command; and express of some ence said not that he had been informed In general rule. be the to we understand that financially “this is irrespon- defendant Bywater, C.B. Cardigan dem. Doe $5,000 has insurance,” sible and but but ejectment an aсtion where also, “If is that I they fact wonder if plaintiff was or stayed by and the consent put up any can bond.” And he continued: defendant, a lease execute dered to “I to want know so as to look that into was not held that it immediately. situation seems It to me that refusing contempt of court guilty of they financially responsible if they can lease, that and accept the tendered put up days a bond in ten as well as in relegated suit should be to a thirty days.’’ response to the court’s Similarly, in cases performance. specific inquiry, “How it?” to about defendant’s counsel, judgment bar credi the latter then made one at as the stаtement quoted opinion, “they in the that will ‍‌‌‌​‌​‌​‌​‌​‌​‌‌‌‌‌‌‌​‌‌​​‌​​​​​‌‌​‌​‌​​​‌​‌​‌​‌‍be wrong remedy for done tor’s thirty days anyhow. in business for They upset the fraudulent transfers should won’t close Luna Park in the summer prosecute for a than to rather said, they counsel time.” Plaintiff’s “If issues raised are more suitable put up put can up a bond it plenary sum in a suit than for trial days”; opponent replied, his ten ten “Not mary contempt procedure. More mode said, days”; and the court “I will make conveyance made over, fraudulent if a twenty twenty days’ stay sixty days it — pendency like the during the make it a case.” entry prior bar one at but court, contempt of no one has is seems to me It thаt action of the is, it suggested that it difficult ever court in a shorter than usual good treating purpose pro- its intent and shows afford contempt merely veyance as a because causing tection to without un- stayed hardship and execution made due debtor in producing request. many I if debtors debtor’s is in bond. doubt would dare litigation temporarily permitting as to leave the this tended read man- quo, is, property during as no transfers statu ner days granted produc- yet For extra ten foregoing been rea- rendered. bond, that is a suitable tion of agree I with interpretation. natural quoted (Lineker passage in the Fleet Van D.C.N.D.Cal., Dillon, im- plainly things wеre 470) that “these in- though written plied this terms,” “courts to it making ceremony of idle not sit en- judgments, the pronouncing orders flouted, ob- may be forcement impunity, with structed, and violated of- punish the tribunal like rate, hereafter At fender.” well advised will be circumstances, counsel speak see to it which, believe, I words few extra minds of all. *6 QUAN et al. re WEING et DIN LUM al. BERLINER v. LEUNG

No. 315. Appeals, Second Circuit. Court May 29, 1939.