German Savings Bank v. Habel — 58 How. Pr. 336

Majority

p. 336

NEW YORK COURT OF APPEALS.

The German Savings Bank, respondent, agt. Agathe Habel et al., appellants.

Headnote

Injunction—in order to punish for a violation of, what should, be embraced in order.

In order to punish for a violation of an injunction, the order should clearly embrace the act complained of.

Where an injunction was obtained restraining the prosecution of a certain action in the marine court, or any steps to recover the $400 on deposit claimed therein:

Held, not to enjoin the plaintiff in the marine court action from collecting certain costs awarded to it by that court prior to the injunction.

Decided March 2, 1880.

An action was commenced in the marine court by the defendant, Agathe Habel, against the plaintiffs, to recover a deposit of $400; the bank, disputing her title to the fund in question, made a motion in the marine court to interplead Henry Gunther, the executor of Oarl Habel, as such executors, who claimed the fund.

This motion was granted to a certain extent; an appeal to the general term of the marine court was taken by Mrs. Habel, and the decision of the court below was reversed, and the sum of twenty-nine dollars and eighty-five cents costs was awarded to Mrs. Habel upon said appeal.

The bank thereafter commenced this action in the superior court of the city of New York for an interpleader, and having obtained therein a preliminary injunction, by which the defendants and their attorneys were enjoined and restrained from bringing, or further prosecuting, or carrying on any action including said action in the marine court, or from taking any steps or proceedings to recover the sum of $400

p. 337

deposited with the plaintiff by the defendant’s deceased husband, until further order of the court; this injunction was continued after trial and a judgment of interpleader.

The defendants’ attorney issued a precept for the collection of the costs and disbursements awarded by the general term of the marine court and the bank moved, in the superior court, to punish the attorney for contempt and for a stay of proceedings under the precept. That court granted the motion, stayed the proceedings of the sheriff upon the precept and awarded ten dollars costs, to be paid by defendants’ attorney, from which order this appeal was taken by Mrs. Habel and her attorney. The general term of the superior court affirmed the order and a further appeal was taken to the court of appeals. That court filed the following opinion:

Samuel Hamel and Henry Wehle, for appellants.

S. Kaufma/n, for respondent.

The injunction clause in the order did not prohibit the collection of the costs awarded, but the prosecution of the action, or any steps to recover the $400 on deposit in the name of Habel.

Under these circumstances the costs were collectible, and the attorney was justified in issuing the precept. If it had been intended to prevent the collection of the costs the order should have been broad enough to cover them. That it was not so intended is shown by the fact sworn to, that the costs became due and an execution could have been issued for their collection before this action was commenced, and that the omission to do so was casual. The orders of the special and general term must be reversed and motion denied, with ten dollars costs of opposing motion and costs of appeal to the general term and to this court.

All concur.