Greite v. Hendricks — 24 N.Y.S. 546

Majority

p. 546

GREITE v. HENDRICKS et al.

(Supreme Court, General Term, Second Department.

July 28, 1893.)

Headnote

Contempt—Sale Pending Injunction.

Where defendant, during the pendency of an action to restrain him from carrying on a saloon business, threatens to evade an adverse decision by selling the business, and does so sell a few days before the entry of judgment against him, an order adjudging him guilty of contempt was properly entered.

Appeal from special term, Westchester county.

Action by Charles Gfreite against Charles Hendricks and another to restrain defendant Hendricks from carrying on a saloon business. During the pendency of the action, and before the entry of judgment against him, Hendricks sold the business. Plaintiff moved for the entry of an order adjudging Hendricks guilty of contempt. Motion granted. Hendricks appeals.

Affirmed.

Argued before BARNARD, P. J., and PRATT, J.

David Swits, for appellant.

L. L. Van Allen, for respondent.

A judgment was obtained by the plaintiff against the defendant Charles Hendricks on the 19th of November, 1892, restraining him from carrying on a saloon business. The case was tried in October, 1892, and the decison was filed on the 5th of November, 1892. Pending the trial the defendant Hendricks threatened, to evade an adverse decision, that he would sell to one O’Connell the business, and that it should not be shut up, no matter what the court decided. A day or two before the entry of judgment he did sell the business to O’Connell, and it continued under O’Connell’s name thereafter. Hendricks owned the title to the real estate, and had covenanted that he would not carry on a saloon business within a half mile of the same for five years from January 1, 1891. The covenant he had received a large price for, and his violation of it caused a large loss to the plaintiff, who was carrying on a similar business on premises adjoining. The covenant had been given upon a sale of the business on the defendant’s premises, but he had forced the plaintiff to lease the same, in gross violation of the spirit of the covenant. The court adjudged that he was guilty of contempt, and directed his commitment to jail unless he undid his transfer with O’Connell, and paid the costs of the motion. The appeal is from this order, and it seems that the appeal is premature. The final order should be awaited, and an appeal taken from that. Brinkley v. Brinkley, 47 N. Y. 40 ; Code § 2281; In re Crosher, (Sup.)

p. 547

11 N. Y. Supp. 504 . If the appeal is proper, the order should be sustained. It is true that the formal service of the judgment was not made until after the transfer to O’Connell, but this transfer was made upon avowed purpose of rendering the judgment idle. He actively interfered to make a judgment of the court nugatory, and therefore was guilty of a contempt. King v. Barnes, 113 N. Y. 476 , 21 N. E. Rep. 182 . The forbidden acts were continued after the service of the order.

The order should be affirmed, with costs and disbursements.

Cases cited

Brinkley v. Brinkley 47 N. Y. 40 N.Y. 1871-12-19 p. 546
King v. Barnes 113 N. Y. 476 N.Y. 1889-05-03 p. 547