Roncoroni v. Gross

86 N.Y.S. 1113 | N.Y. App. Div. | 1904

Van Brunt, P. J.:

Throughout the papers in this case the orders are spoken of as being the orders of the justice who directed their entry. It will be observed that they were not judge’s orders, but orders of the court, and should have been styled as such, they not being orders of the justice, but of the court over which he presided.

•On the 30th of November, 1903, an order was entered in this action enjoining and restraining the defendants during its pendency and until the further order of the court from in any manner using the words “ Conserva Di- Tomate ” as a description of any tomato preserves or paste, etc. It being claimed by the plaintiff, that the defendants violated this injunction on the 11th of December, 1903, an order to show cause was procured requiring them to show cause why they should not be punished as and for a contempt of court, because of the violation of the injunction above mentioned.

Upon the hearing of this motion evidence amply sufficient to justify the conviction of the defendants of such violation was presented to the court, and thereupon an .order was entered granting the motion, and ordering that the defendants and each -of them be punished as and for a criminal contempt in disobeying the order entered herein on the 30th of November, 1903, and fining the defendants the sum of $100. :

From this order the defendants have appealed, and the only question which it is necessary to consider upon this appeal is as to the sufficiency of the order adjudging the defendants guilty of contempt; it being claimed that it does not comply with the provisions of the Code in reference to criminal contempts, in that it fails to set out or describe the act or acts constituting the alleged contempt. This objection seems to be well taken. Section 8 of the Code of Civil Procedure defines criminal contempts, under the 3d subdivision of which section the acts of the defendants would fall. Section 9 provides for the punishment for criminal contempts; section 10 provides for the procedure for the punishment for such contempts when committed in view of the court or otherwise; and section 11 specifies the requisites of commitment. It is as follows : “ Where a person is committed for such a contempt the particular circumstances of his offence must be set forth in the mandate of commitment.”

In the case at bar there is a general statement of the disobedience of the order of the 30th of November, 1903, but the particular circumstances which constituted such disobedience are nowhere set forth in' the order appealed from. The requirements, therefore, of section 11 of the Code of Civil Procedure have not been . complied with, and the order is improper for that reason.

The order should he reversed, with ten dollars costs and disbursements, and remitted to Special Term for further action.

Patterson, Ingraham, Hatch and Laughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and matter remitted to Special Term for further action.