Cumberland Coal & Iron Co. v. Hoffman Coal Co., 15 Abb. Pr. 78

Cumberland Coal & Iron Co. v. Hoffman Coal Co.

15 Abb. Pr. 78 | N.Y. Sup. Ct. | 1862

Lead Opinion

By the Court.—Ingraham, P. J.

The want of jurisdiction of the court over the subject-matter of the action, did not pre*81vent the defendants from recovering costs on the dismissal of the complaint, nor does it deprive the defendants of the right to damages, on the undertaking given on the issuing of the injunction when it was dissolved. The court had sufficient jurisdiction over the parties to commence the action, although there, was none over the subject-matter, and in such a case I can see no reason why the defendants should not have the benefit of the undertaking filed for that purpose. The plaintiff is estopped from denying jurisdiction. (2 Sandf., 81.) The only question is whether a defendant who obeys an injunction before the process is sei’ved, may have such relief. I think he may if he obeys the injunction. It has been held that it is the duty of the defendant to obey an injunction if he knows it has been granted, although it has not been served, and if he disobeys it he would be liable to an attachment. The injunction is granted before service of process often, and the undertaking when filed in such a case is for the benefit of all the defendants, whether served or not, that are enjoined.

The order should be affirmed, with costs.

Barnard, J., concurred.

Dissenting Opinion

Leonard, J.

I dissent. The Hoffman Company not having appeared in the action is not entitled to any costs. I think the Hoffman Company cannot, without service of process, volunteer to come into court, so as to claim the benefit of the undertaking, without full appearance in the action, unless there had been service of the injunction. The court were also without jurisdiction of the parties or of the action so far as the Hoffman Company was concerned. This defendant is a foreign corporation. The plaintiff does not reside in this State, and the cause of action did not originate here. (Code, § 427.) The injunction was void; not merely voidable. And the court were without jurisdiction to make the order of reference, or any other order, affecting the Hoffman Company. (People a. Sturtevant, 9> m r., 263.)