6 N.Y.S. 470 | N.Y. Sup. Ct. | 1889
On the 6tli of March, 1888, an injunction order was granted in this action, which was pending in the supreme court in the First judicial district, returnable on the 9tli of March, enjoining and restraining the
The grounds upon which this appeal is argued are—First, that the service of the injunction, not having been made on Messrs. Close and Thacker personally, was insufficient tq bring them into contempt for its disobedience; second, that the injunction order was void, because made in violation of rule 37; third, that the justice had no jurisdiction, because the papers on which it was based neither made nor tended to make a case conferring jurisdiction; fourth, that the learned j ustice erred in refusing any hearing on the question as to whether the offense complained of was calculated to or did defeat or impair the rights and remedies of the defendant; and, fifth, it is alleged that Messrs. Close and Thacker should not be punished for the alleged contempt, because not only for the reasons already mentioned, but because they acted in conformity with the established practice in the Second judicial department, and in pursuance of the orders and directions of the justice presiding at the Westchester circuit, who was acting pursuant to a general rule of the court having the force of a statute. The appellants had sufficient notice of the existence of the injunction to impose upon them the duty of obeying it, and to render them liable to be punished civilly for disregarding it, so far, at least, as was necessary to indemnify the party injured by their disobedience. Hull v. Thomas, 3 Edw. Ch. 236; Livingston v. Swift, 23 How. Pr. 1. In the case last cited the Albany general term held that knowledge of an injunction, information of its contents, and presence in court when it was made, were fully sufficient to impose upon the defendant the duty of obeying it, so far as related to the pecuniary rights of the party by whom the injunction had been obtained. In the present case it is established beyond question, and indeed appears from his own affidavit, that Mr. Close knew of the injunction. The order of Mr. Justice Dykman, purporting to vacate it, appears to have been made upon his own application. Under these circumstances, it would be idle for him to deny, nor does he deny, that he was aware of the existence of the injunction. Mr. Thacker seems to have been equally well informed on the
The appellants contend that the injunction was void because it was granted in violation of rule, 37 of the general rules of practice, which provides that no order except in the First judicial district, served after the action has been noticed for trial, and within 10 days of the circuit, shall have the effect to stay the proceedings in the action, unless made at the circuit where the case is to be tried or by the judge who is appointed or is to hold such circuit, or unless such stay is contained in an order to show cause returnable on the first day of the circuit. But this rule plainly applies only to orders made in the same action in which proceedings are sought to be stayed. It has no application to an injunction granted as a provisional remedy in another and different suit, such as was the injunction which the appellants disregarded.
The point that the justice had no jurisdiction to grant the injunction, because the papers on which it was based neither made nor tended to make a case conferring jurisdiction, seems to be founded upon the claim that the injunction may be violated witli impunity by the defendant, provided he is able to show upon .a subsequent application that it has been improvidently granted. Ho such rule exists, for the reason that the books are full of cases where a party will not be heard to attack an injunction of the court because it was improvidently granted, where he has willfully violated the injunction, until he has purged himself of his contempt. The case of People v. Bergen, 53 N. Y. 404, is a sufficient authority to the contrary, if any were needed. It is there laid down that if the order is improvident the remedy is by application to vacate it or by appeal. So long as it remains in force, it is the duty of all parties to obey it, and the merits are not reviewable. The same rule is laid down in Clark v. Bininger, 75 N. Y. 344, and also in People v. Dwyer, 90 N. Y. 402. But it is needless to multiply authorities upon this point, as the rule is elementary.
The point that the justice erred in refusing any hearing on the questions as to whether the violation of the injunction was as calculated to or did defeat or impair the rights or remedies of the respondent is not raised by this appeal, because no such adjudication upon the part of the court appears in its order. It is a very well-settled rule that expressions contained in opinions form no part of the judgment of the court, and, unless they are contained in the order appealed from, cannot be considered in determining the validity of the order. Upon the face of the order it nowhere appears that in determining the question of contempt the learned judge refused to enter into any inquiry into the merits. It is true that such expression was contained in his opinion, but it nowhere appears in the order, and if it had it would have made no difference, because of the reasons heretofore assigned in that regard.
But it is urged that the attorney should not be punished for the alleged contempt, because the error into which he fell was also entertained by the learned trial judge who presided at the Westchester circuit, and that the attorney should not be fined because he did not know what the law was better than the learned judge before whom he was practicing. The force of this argument we are unable to see, because it would allow an attorney to deceive a judge into the making of an order which he had no authority to make, vacating an injunction, and thereby he would be at liberty to violate it at his pleasure. Ho such rule can obtain, because it would open the door wide to attempts to defraud the court in obtaining orders for the vacation of injunction, when the court had no jurisdiction to entertain any such application. It is clear that the circuit court of Westchester county had no power what