145 N.Y.S. 388 | N.Y. App. Div. | 1914
The order, for the violation of which the appellants were adjudged guilty of criminal contempt, was granted by a justice of this court at chambers, enjoining the appellants from participating in or voting at a meeting of the Democratic county committee of Albany county appointed to be held September 26, 1913. The proceeding in which it was granted was instituted by the petition of the respondents, under section 56 of the Election Law (Consol. Laws, chap. 17 [Laws of 1909, chap. 22], added by Laws of 1911, chap. 891) to obtain a judicial review of the action of the inspectors of the primary election held September sixteenth in declaring the appellants elected'members of the Democratic county committee from the fifteenth ward of the city of Albany over the respondents. No fraud was charged, but the respondents claimed that the inspectors of election erroneously counted one protested ballot, and rejected two ballots as void, which resulted in a declaration of the election of the appellants. On September twentieth, upon the presentation of the petition to obtain such review, a justice of this court granted an order returnable before him at his chambers on September twenty-seventh, which was the day following the expiration of the ten days within which the county committee might under the Election Law (§ 38, as added by Laws of 1911, chap. 891) meet and organize, requiring the appellants and others to appear and show cause why the primary election should not be reviewed and corrected, and a recount and recanvass of the votes had, and restraining the commissioners of elections in and for the county of Albany from delivering to any person any certificate
The contempt of which the appellants seem to have been found guilty was of “resistance wilfully offered to its lawful mandate,” being subdivision 4 of section 750 of the Judiciary Law (Consol. Laws, chap. 30; Laws of 1909, chap. 35), formerly subdivision 4 of section 8 of the Code of Civil Procedure. While the efficient administration of justice requires that the courts zealously protect and enforce process properly issued, it must be conceded, I think, that if the justice had no authority to grant the order of September twenty-sixth, he had no authority to punish the appellants for criminal contempt, as the power to punish the violation of an injunction as a contempt is incident to the power to grant the order. (People ex rel. Lower v. Donovan, 135 N. Y. 76; People ex rel. Eckerson v. Trustees, 151 id. 75, 84.) Concededly this proceeding is not an action. Hence the provisions of the Code of Civil Procedure (§§ 602-606) are not applicable, as injunctions under the Code are authorized only in actions. They cannot issue in a special proceeding save in the few cases authorized by statute. (Matter of Dietz, 138 App. Div. 283; Brockway v. Miller, 144 id. 239; Matter of Greene, 153 id. 8.) Authority, therefore, for granting the injunction must be found, if at all, in some statutory provision, otherwise it cannot be said to exist. It was said in People ex rel. Geery v. Brennan (45 Barb. 344) that a judge out. of court has no
The order appealed from must be reversed, and motion to punish for contempt denied.
Smith, P. J., and Woodward, J., concurred; Kellogg, J., concurred in result; Howard, J,, dissented.
Order reversed, with costs, and motion denied, with ten dollars costs.