100 N.J. Eq. 123 | N.J. Ct. of Ch. | 1926
The complainants, owners of property at Lake Hopatcong used exclusively for private dwelling purposes, filed their bill against the defendants, owners and occupants of adjoining property, alleging that the defendants were maintaining and operating an inn, boarding house or hotel on such adjoining property, contrary to restrictions contained in deeds under which the complainants and the defendants, respectively, hold title, and praying that the defendants be enjoined from continuing to use their property for the purpose aforesaid. After final hearing a decree was entered June 28th, 1926, ordering that an injunction issue, restraining the defendants from using, permitting or suffering their property to be used for the purpose of an inn, boarding house or hotel, or for any business purpose whatever, and from using, permitting or suffering said property to be used for any purpose other than as a private dwelling, with its necessary boat houses and out-buildings. On July 1st, 1926, notice of appeal from this decree to the court of errors and appeals was filed in this court, and on July 6th, 1926, on application under chancery rule 160, made ex parte on behalf of the complainants, an order advised by me was entered ordering that a writ of injunction issue on the decree, notwithstanding the pending appeal, whereupon the writ issued July 9th, 1926, was duly served on the defendants. Thereafter, the defendants, on notice to the complainants, applied to me to vacate and dismiss the order of July 6th, 1926, and for an order staying the writ, which motion was, by order filed July 12th, 1926, denied. The defendants ignored the terms of the injunction by continuing to conduct or operate an inn, boarding house or hotel on their property throughout the months of July, August and part of September, 1926, and the matter is now before me on orders to show cause why the defendants should not be adjudged in contempt of this court.
The defendants do not deny having disobeyed the terms of the injunction, but their counsel contend that they ought not be adjudged contemnors because the filing of the appeal suspended the operation of the decree until the court of *125 errors and appeals shall have decided the appeal, and that the order of July 6th, 1926, that an injunction issue and the order of July 12th, 1926, refusing to stay the writ, were improvidently entered. After a careful study of the rules of this court, the statutes and the authorities, I conclude that this contention is a sufficient answer to the orders to show cause.
As to the effect of an appeal from an injunctive decree of this court on the operation of the decree, the leading case isPennsylvania Railroad Co. v. National Docks, c., Co.,
Six years after this pronouncement, the legislature passed an act (Comp. Stat. p. 451 § 112) providing that "no appeal *126 taken from an order or decree granting an injunction shall suspend or modify the operation of the injunction without an order of the chancellor or the court of errors and appeals for that purpose, and such suspension or modification shall extend only so far as may be necessary to preserve the subject of the appeal and shall not in any case be allowed to destroy the right of appeal."
The opinion of the court of errors and appeals in the NationalDocks Case has been discussed in the light of this statute, and the apparently wide scope of the decision has been limited in subsequently reported cases, but it is still authority for the proposition, which should be applied to the instant case, that an injunction should not issue, or, if allowed, should not be continued in force, pending an appeal from a decree awarding the writ, if the enforcement of the writ will destroy or impair the subject of the appeal. Laird v. Atlantic Coast Co.,
Would the injunction in this case, if enforced, have such effect? The defendants had altered the buildings on their land to adapt them for summer hotel or boarding house purposes, and they had put them to such use prior to the filing of complainants' bill. The right of the defendants to occupy and use their land and buildings for private dwelling purposes is not questioned, and the subject-matter of the suit and of the appeal is whether they have the further right, not only after the appeal is determined but at the present time, to conduct thereon the business in which they were engaged at and prior to the filing of the bill. It now seems to me that to prevent them from continuing their business from the time the final decree herein was entered to the time the appellate court hands down its decision, would force them to suffer impairment or diminution of their rights, if the appellate court should determine that the final decree was erroneous, because they would lose not only last summer's business but they would also sustain such future loss as would probably result from their patrons finding satisfactory *127 accommodations elsewhere. If the defendants were operating an "all-the-year-around" boarding house or hotel, the impairment of the rights involved in their appeal through a restraint, until the court of errors and appeals has spoken, would be clearer, but the fact that theirs is a summer enterprise makes the difference but of degree. I, therefore, conclude that the enforcement of the restraint would affect the subject of appeal and render a decision thereon in the defendant's favor partly inoperative.
Counsel for the complainants urges that Cape May Yacht Club
v. Cape May Yacht and Country Club,
Counsel for the complainants further urges, on the authority ofRoseberg v. American Hotel Co.,
If I were now to attempt to enforce the injunction in this case by holding the defendants in contempt, I feel I would be doing them a grave injustice, and that I would be guilty of reversible error. I shall discharge the orders to show cause issued against them.