81 N.Y.S. 638 | N.Y. App. Div. | 1903
The appellant has been adjudged guilty of contempt of court for having willfully disobeyed an injunction order made by this court on the 21st day of November, 1902, in accordance with the opinion delivered on the decision of an appeal by the plaintiff from an order denying a motion for an injunction in this action (76 App. Div. 137). The material facts relating to the relationship and rights of the parties are stated in our former opinion, and need not be restated here. Our decision established that the defendant Tuska was the owner of the dock, bulkheads and adjacent premises on the East river between One Hundred and Fifth and One Hundred and Sixth streets; that he leased a strip of land extending from One Hundred and Fifth street to One Hundred and Sixth street, a few hundred feet from the river, to the plaintiff, together with the right of access to and use of this dock; that he thereafter leased the southerly half of the lands lying between the lands thus leased to Tuska and the East river to the appellant Jackson, and subsequently leased the northerly half to the defendant "Wright; that while as between him and the owner the plaintiff, at least, acquired the right of access to the dock from either street, and the use of any or all of the dock as might be necessary for the proper transaction of his business> yet as between the plaintiff and the owner and the subsequent tenants such access should be had over the premises last leased, and that part of the
Since the original application for an injunction it appears that the northerly half of this dock has become so out of repair that it is unsafe and dangerous and has been condemned by the dock department and is incapable of being used in its present condition. In these circumstances it is evident that the northerly half of the dock, is inadequate for the plaintiff’s use within the spirit and fair intent of our decision and injunction order. The appellant has constructed a high board fence across the dock to the water’s edge midway between One Hundred and Fifth and One Hundred and Sixth streets and has not only refused to permit the plaintiff to land material for use in its business upon the southerly half of the dock, but has forcibly prevented such landing and has declined and refused to remove said fence so that the plaintiff might have access to the southerly half of the dock which only was in a condition suitable for use. This was a clear violation of the injunction order; and it was not a mere temporary violation in ignorance of the appellant’s rights and to afford time to enable him to obtain advice, but it was persisted in after formal respectful demands both by the plaintiff and its attorney.
The violation of the injunction order was deliberate and inten
The motion to punish the appellant for contempt also embraced an application to punish his attorneys. The attorneys have not been formally adjudged guilty of contempt, but they are severely censured in the order and leave is granted for a further application on the foot of the order to punish them in case they persist in advising the appellant that he has a right to prevent the plaintiff from using the southerly half of the dock Or from having access thereto both from land and water. Although the plaintiff did not appeal from this part of the order, the conduct of the attorneys for the appellant is so reprehensible that we cannot allow it to pass unnoticed. It appears that they deliberately advised their client in resisting the plaintiff, and they claim to have done this on the theory that it was the duty of the plaintiff to put the northerly half of the dock in repair, and that he could only use the southerly half when the northerly half, used to its full capacity, proved inadequate. It is unnecessary to determine upon whom rested' the duty of repairing the northerly half of the dock, for that is wholly immaterial to- the question presented. By our order the appellant was commanded to permit the plaintiff to use the southerly half of the dock whenever the northerly half was inadequate for the purposes of its business. The right to such use Was not limited by any condition with reference to
It follows that the order should be affirmed, with ten dollars costs and disbursements.
Yah Brunt, P. J., Patterson, McLaughlin and Hatch, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.