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Watson v. Coe

5 N.Y.S. 614 Court N.Y. Gen. Term Decision date 1889-05-24 English

Delivered by Yan Brunt, P. J.

Contents

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p. 614
Watson v. Coe.
(Supreme Court, General Term, First Department.
May 24, 1889.)

Headnote

1. Injunction—Personal Service—When Necessary.
Certain creditors of a corporation brought an action on behalf of themselves and! all other creditors to enforce the statutory liability of the stockholders, and an injunction was therein granted, restraining all creditors,-whether parties to the action or not, from commencing or further prosecuting any action against the stockholders to enforce such liability. Held, that for the purposes of a motion to postpone separate actions pending by other creditors, it was not necessary to serve the-injunction order personally upon the plaintiffs therein, but it was sufficient to show that they or their attorneys had knowledge of its existence.
8. Same—Motion to Set Aside—Decision.
Where a statute directs a decision on a motion to set aside an injunction to be-rendered within 80 days after submission, but contains no provision depriving the court of jurisdiction in case the decision is not rendered within that time, the provision is merely directory.
Appeal from special term, Hew York county.
In this action of Jessie Watson against E. Frank Coe, and three other actions of a similar nature, the plaintiffs appeal from an order staying the proceedings therein.
Argued before Yan Brunt, P. J., and Bartlett and Macomber, JJ.
Wm. W. Badger, for appellants. Edward B. Merrill, (Henry B. Hotchkiss, of counsel,) for respondent.

This is one of several actions against stockholders of the American Opera Company, (Limited,) to recover of the several defendants the amount of the plaintiff’s claims against the company. An action was brought by S. Skiddv Cochran and another on behalf of themselves and. all other creditors of the American Opera Company, Limited, against the-stockholders of said company, to enforce the claims of all the creditors thereof against said stockholders, and in said action an injunction was granted restraining all the creditors, whether parties to the action or not, until the further order of the court, from commencing, further prosecuting, or taking any further proceeding against any of the stockholders of said company to recover from said stockholder the amount of his statutory liability as stockholder for any debt of said company. Of the existence of this order the attorney for the appellant was well aware. But it appears that the same was not served. upon the plaintiffs personally. These actions coming up for trial, a motion, was made to postpone the same in consequence of the existence of this injunction. The matter was referred to the judge holding the special term, and a. motion was there made for such stay, which motion was granted, and, from the order entered thereon this appeal is taken. The principal ground which.

p. 615
seems to be assigned by the counsel for the appellant is that the order should not have been made because the injunction order was not served personally upon the plaintiffs. For the purposes of this motion it does not appear to have been necessary to serve the injunction order personally upon the appellants, but that it was sufficient to show that they or their attorneys had knowledge of its existence. Armitage v. Hoyle, 2 How. Pr. (N. S.) 438; Hull v. Head, 3 Edw. Ch. 236 . Upon these facts appearing, the court was bound to stay the proceedings on these trials, and the only way in which the plaintiffs could rid themselves of the effect of the injunction in the omnibus suit was to seek its dissolution therein, so far as they were concerned. Neither is the claim that the decision upon the motion to set aside the injunction was not finally rendered within 20 days after it was submitted for decision any answer to the question as to the validity of the injunction. There is no provision contained in the act which deprives the court of jurisdiction in case such application is not decided within 20 days, and therefore the provision is merely directory; and, even if the motion is held beyond that time, it in no way affects the validity of its disposition. It seems to us, therefore, that the plaintiffs cannot, so long as the injunction in question remains in force, compel the trial of these actions, but must get rid of that injunction before they can proceed herein. The order appealed from must be affirmed, with $10 costs and disbursements. All concur.

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