174 A.D. 384 | N.Y. App. Div. | 1916
This proceeding is brought to punish defendants for criminal contempt of court for the willful violation and disobedience of an injunction contained in an order to show cause, bearing date February 7, 1916, whereby the Mecca Realty Company and the 0. J. Gude Company, their agents, servants and employees, were enjoined and restrained from raising, altering or interfering with a certain sky sign upon the roof of premises known as the Mecca Building, situate at the northeast comer of Forty-eighth street and Broadway in the city of New York. Said injunction order was issued in an action in the Supreme Court, New York county, wherein the Empire Leasing Company, Inc., was plaintiff, and the Mecca Realty Company and the O. J. Gude Company were defendants, and was signed by Hon. Thomas F. Donnelly, a justice of the said court. The motion to punish for criminal contempt was based on affidavits showing that despite the injunction order, and in willful violation and disobedience thereof, the sky sign in question had been raised, and work proceeded thereupon to raise it from its then height of 71 feet to its proposed full and unlawful height of 135 feet 10 inches, with the then existing width of 104 feet, upon the completion of which both the Mecca Company and the Gude Company would receive a revenue of nearly $1,000 per month,
By their supplemental brief respondents have raised for the first time the point that as this is a proceeding to punish for a criminal contempt, it comes within the provisions of section 750 of the Judiciary Law (Consol. Laws, chap. 30; Laws of 1909, chap. 35) defining criminal contempts and authorizing the punishment therefor, and that the only subdivision applicable thereto is the 3d, whereby the court is empowered to punish “Wilful disobedience to its lawful mandate.” But respondents urge that the injunction order signed by Mr. Justice Donnelly being a judge’s order and not an order of the court, no criminal contempt can be predicated on disobedience thereto. It is quite true that under the subdivision of section 750 heretofore quoted the court has power to punish as for a criminal contempt only willful disobedience to its lawful mandate. But the Code of Civil Procedure (§ 606) provides that “ Except where it is otherwise specially prescribed by law, an injunction order may be granted by the court in which the action is brought, or by a judge thereof, or by any county judge; and where it is granted by a judge, it may be enforced as the order of the court.” Therefore, the justice granting
The affidavits in this proceeding submitted on behalf of the relator, accompanied by photographs showing the progress of the work despite the injunction order, are not answered by defendants’ affidavits, and establish a clear case of willful, continued and studied disobedience of the mandate of the court, and a contemptuous persistence in their purpose to raise the sky sign to its full proposed height, regardless of what the court might do. Defendants attempt to deny that they have taken any “ affirmative action whatever in connection with the erection of said sign since the 7th day of February, 1916.” The Mecca Company now seeks to evade responsibility for its contempt by hiding behind the Crude Company, its lessee; the G-ude Company in like manner takes refuge behind the Belmont Company, its contractor; the Belmont Company claims it is shielded from responsibility by the Mayes Company; and the Mayes Company claims that because it was not named in the injunction order, it cannot be punished. The affidavits prove conclusively a willful disobedience to the injunction order on the part of the original defendants in the Empire Leasing Company suit, namely, the
As to O. J. G-ude and W. F. Wentz the order appealed from is affirmed, without costs; as to all the other defendants it is reversed, with ten dollars costs and disbursements to appellant. The defendants Mecca Eealty Company, 0. J. Crude Company, Belmont Iron Works, Mayes Construction Company, Jesse Froelich, Albert Cans, Louis Mansbach, Edward H. Mayes and S. S. Albert are each determined to have been guilty of a willful disobedience of the mandate of court, and are each fined the sum of $250.
Clarke, P. J., McLaughlin, Scott and Smite, JJ., concurred.
As to 0. J. Crude and W. F. Wentz, order affirmed, without costs. As to the other defendants, order reversed, with ten dollars costs and disbursements, and motion granted as stated in opinion. Order to be settled on notice.