Douglass v. Halstead — 54 N.Y.S. 428

Majority

p. 428

DOUGLASS et al. v. HALSTEAD et al.

(Supreme Court, Appellate Division, Second Department.

November 29, 1898.)

Headnote

Injunction—Violation—Trespass—Contempt.

Where defendant was enjoined from pulling down fences on plaintiff’s-premises, or from allowing patrons of his bath house from making use of a private road through plaintiff’s premises, he is liable for contempt, where the private road is so used, although his act which resulted in such use was merely the taking down of a fence on his own land, which was therefore no violation of the first part of the injunction.

Appeal from special term, Westchester county.

Action by Sarah 0. Douglass and another, executors, against William B. Halstead and others. From an order of the supreme court entered on July 9, 1898, adjudging defendant Halstead guilty of contempt of court in violating an injunction, and ordering him to pay a fine of $150, and stand committed to jail until paid, he appeals.

Affirmed.

Argued before GOODRICH, P. J., and CULLER, BARTLETT,. HATCH, and WOODWARD, JJ.

Frederick W. Sherman, for appellant.

John H. Clapp, for respondents.

The facts of this case are sufficiently set forth in the opinion upon a former appeal. Douglass v. Halstead, 11 App. Div. 101 , 42 N. Y. Supp. 588 . It was then decided that the proof' did not warrant a finding that the defendant Halstead had been guilty of contempt in removing the fences which he did remove, but that the evidence justified the conclusion that he had violated the provision in the judgment which prohibited him from permitting the-patrons of his bathing houses to make use of the private road or lane mentioned in the judgment. The proceeding was therefore remitted to the special term for a further hearing on the merits, inasmuch as-it did not appear what punishment the court below would háve inflicted for the only misconduct which we thought had been proved. Such further hearing has now been had at special term upon the same papers, with the result that a fine of $150, instead of $200,. has been imposed upon the defendant Halstead, who again appeals.

It is argued in his behalf that the only evidence of his having, permitted the use of the private road which the injunction forbids shows that the road was invaded in consequence of the removal of

p. 429

the fence, which removal the appellate division has decided not to have been a violation of the injunction. If he acted within his rights in removing this fence, it is urged that he cannot be held responsible for the consequences. This argument proceeds upon a misapprehension of our former decision. One provision of the judgment forbade the defendants from pulling down or injuring the fences on the premises of the plaintiffs. We held that the defendant Halstead ■could not be punished for violating this provision, because it did not appear that the fencing with which he had interfered was on the plaintiffs’ land. In other words, he was enjoined from committing a trespass, and the proof failed to establish that he had committed such trespass. As to the part of the judgment, however, which prohibited him from -permitting persons visiting or using the bath houses to pass over the private road in question, the case is different. His removal of the fence on his own land, so as to allow such persons to gain convenient access to the private road, though no trespass, was an act indicative of a willingness, not to say desire, on his part, that the patrons of the bath houses should pass over that road, just as it would have been if he had opened a previously locked gate in ■order to let them through. We remain of the opinion that he willfully permitted a use of the private road which was forbidden by the injunctive portion of the judgment, and thereby subjected himself to punishment for contempt.

No objection is made to the form of the order, and it should be affirmed, with $10 costs and disbursements.

Cases cited

Douglass v. Halsted 11 App. Div. 101 N.Y. App. Div. 1896-12-22 p. 428