22 F. Cas. 830 | E.D.N.Y | 1874
This is a proceeding against Edgar A. Hutchins and Edward S. Clinch, for an alleged contempt in violating an injunction issued out of this court in the matter of the South Side Bailroad Company of Long Island, bankrupt, against which company a petition of bankruptcy was filed on the 12th day of November, 1873. The parties proceeded against are attorneys at law, composing the law firm of Hutchins & Clinch, one of whom, Edward S. Clinch, as party plaintiff, on February 13th, 1874, with knowledge of the pendency of the proceedings in bankruptcy above referred to, commenced an action in the supreme court of the state of New York against the South Side Bailroad Company, and, having obtained judgment in such action, by notice of motion dated the 11th of April, 1874, and returnable April the 20th, 1874, at 10 a. m. sought to obtain from the supreme court of the state the appointment of a receiver of the property belonging to the bankrupt. On the 18th day of April, and before this application to the supreme court came on to be heard, upon motion of the attorney for the petitioning creditor in the bankruptcy proceedings above mentioned, an injunction was issued out of this court restraining the said Clinch and his attorneys from further proceeding with his application to the supreme court of the state for the appointment of a receiver of the estate of the bankrupt — which injunction, it may here be remarked, was accompanied with an order to show cause why it should not be made perpetual, upon the return of which, by the consent of Clinch, the injunction was made permanent.
The preliminary injunction so issued was served on both Hutchins and Clinch, on the morning of April 20th. On the same day the application for a receiver, expressly forbidden by the preliminary injunction, was made by Clinch, the plaintiff, in person; and, on such application, a receiver of the bankrupt’s property was appointed by the supreme court of the state. The injunction of this court having thus been rendered inoperative, proceedings are now taken, by the attorney for petitioning creditors, to punish the said attorneys for their acts in violation of the injunction; and they are, in this proceeding, charged with having been guilty of contempt, in that, with knowledge of the injunction of the court, and in violation of it, they made the application to the state court for the appointment of a receiver of property then in this court, as the property of a bankrupt, since adjudged so to be, and in the procuring such appointment to be made. The attorneys complained of have appeared in this proceeding and answered; and, by consent, testimony has been taken, and the matter thereupon submitted to the court for its determination. The answer of Hutchins to the charge made is, that while, as one of the firm of Hutchins & Clinch, attorneys of record in the act-on brought by Clinch, he is, in a certain sense, responsible for anything done in the suit brought by Clinch, he should not be subjected to punishment, because it appears that he had no personal charge of the action of Clinch; and that, when notify d of the existence of the injunction issu->l by this court, he took steps at once to inform Clinch of its existence, and, for himself, took no action whatever towards the procuring of the appointment of the receiver. This answer on the part of Hutchins is borne out by the evidence, and can be taken as sufficient to exonerate him from liability to punishment.
On the part of the other member of the firm of Hutchins & Clinch, who was also the party plaintiff in the action brought in the supreme court, the defence interposed is based upon the fact that he was not served with the injunction until he was upon his feet, before the justice of the supreme court, engaged in making the application for a receiver; and, when so informed of the existence of the injunction, he stated to the justice that he was enjoined from further proceeding, and that he took no further action, except to hand up to the justice his motion papers, with a draft order for the appointment of the receiver asked for.
It also appears that Clinch, when served with the injunction, omitted to withdraw his application or to make any application for leave to withdraw it On the contrary,
So deliberate a disregard of an order of court, by an attorney at law in his own suit, is properly brought to the attention of the court, and cannot be permitted to pass unpunished. What the extent of the punishment should be cannot well be determined, in the absence of information as to the expense and loss, caused by the act of the attorney now under consideration. I shall therefore go no further at present than to direct that an order be entered, dismissing the proceeding against Hutchins, and adjudging Clinch guilty of the contempt charged; and to direct that a reference to the register, in charge of the bankruptcy case, be had to ascertain and report to this court, the amount of expense and loss occasioned by the violation of the injunction iu question. The attorney for the petitioning creditor is hereby directed to attend upon such reference, and to submit upon notice to said Clinch, such evidence as may be obtained in respect to the matters so referred.
