Koehler v. Farmers' & Drovers' National Bank — 25 N.Y. St. Rep. 222

Majority

p. 222

Herman Koehler, Resp’t, v. Farmers’ and Drovers’ National Bank, etc., App’lts.

(Supreme Court, General Term,, First Department,

Filed July 9, 1889.)

Headnote

1. Injunction—Service—Contempt.

An injunction order was granted in this action, which was pending in the supreme court, first judicial district, enjoining the defendants herein, its agents and attorneys, from further proceedings in an action brought by the defendants against the plaintiff, pending in the circuit court, Westchester county. The order was served upon the attorneys for the bank by leaving a copy with the clerk having charge of their office. When the case of the Dank v. Koehler was reached in Westchester county, the plaintiff’s attorney procured an order, vacating it, from the trial judge, and judgment by default was taken. The cashier of the bank was present at the time of the application. It is contended by defendant that the order, not having been served personally, was insufficient to bring them in contempt. Held, that the defendants had sufficient notice of the injunction order, and are guilty of contempt.

S. Same—General rules of practice, rule 37.

Rule 37 of the general rules of practice, applies only to orders made in the same action, and not to an injunction order granted as a provisional remedy in another and different suit.

3. Same—When cannot be attacked.

A party will not be heard to attack an injunction of the court because improvidently granted, where he has willfully violated the injunction, until he has purged himself of his contempt.

4. Same—What not considered in determining validity of order.

Expressions contained in opinions form no part of the judgment of the court, and unless they are contained in the order appealed from, cannot be considered in determining the validity of the order.

5. Same—Motion to vacate—When made.

No motion can be made, outside of the county of New York, for the vacation of an injunction granted in an action, pending in the supreme court, first judicial district.

Appeal from order punishing an attorney for an alleged contempt in violating an injunction order.

W. A. Abbott, for app’lts; E. J. Meyers, for resp’t.

On the 6th of March, 1888, an injunction order was granted in this action which was pending in the supreme court in the first judicial district, returnable on the 9th of March, enjoining and restraining the defendants herein, its agents or attorneys from further proceedings in action brought by the defendant against the plaintiff herein and pending in the circuit court of West-

p. 223

Chester county. The injunction order, complaint, affidavits and undertaking were served on the attorneys for the bank on the 6th of March at White Plains by leaving a copy of the same with the clerk having charge of their office, the attorneys being then absent therefrom. On the 7th of March the case of the Bank v. Koehler was reached on the circuit calendar and called for trial. The defendants’ attorney was represented by his clerk who presented the injunction order staying the proceedings until March 9 th. Thereupon the counsel for the plaintiff moved to vacate the injunction order so far as it interfered with the trial of this, action; and the following order was entered:

“Westchester Circuit, March 7, 1888.

“Present.—Hon. J. O. Dykman.

The Farmers’ and Drovers’ National Bank against Herman Koehler.

“Ordered that the order made by the Justice M. J, O’Brien, dated March 6, 1888, in so far as the same restrains or stays proceedings of plaintiff in above entitled action be, and the same is hereby vacated and set aside.

“J. O. DYKMAN, J. S. C.”

No notice of this application was served. Thereupon Mr. Close took judgment by default, being sworn himself as a witness, and the cashier of the bank, Mr. Thacker, being also sworn as a witness.

It is to be observed that the order purporting to vacate the injunction was not made in the action in which the injunction was issued, but was made in an action pending in the circuit court of Westchester county. On the following day, March 8th, the judgment was vacated in New York county, and an order to show cause why the attorney and cashier should not be punished for contempt was granted upon affidavits establishing the foregoing facts.

Upon the hearing of this motion an order was made adjudging the said attorney to be in contempt, and fining him in the sum of $100, and from such order this appeal is taken.

The grounds upon which this appeal is argued are:

First. That the service of the injunction not having been made on Messrs. Close and Thacker personally, was insufficient to bring them into contempt for its disobedience.

Second. That the injunction order was void because made in violation of rule 37.

Third. That the justice had no jurisdiction, because the papers on which it was based neither made, nor tended to make, a case conferring jurisdiction.

p. 224

Fourth. That the learned justice erred in refusing any-hearing on the question as to whether the offense complained of was calculated to, or did, defeat or impair the rights and remedies of the defendant; and

Fifth. It is alleged that Messrs. Close and Thacker should not be punished for the alleged contempt, because not only for the reasons already mentioned, but because they acted in conformity with the established practice in the second judicial department, and in pursuance of the orders and directions of the justice presiding at the Westchester circuit, who was acting pursuant to a general rule of the court having the force of a statute.

The appellants had sufficient notice of the existence of the injunction to impose upon them the duty of obeying it, and to render them liable to be punished civilly for disregarding it, so far, at least, as was necessary to indemnify the party injured by their disobedience. Hull v. Thomas, 3 Edw. Ch., 236 ; Livingston v. Swift, 23 How. Pr., 1 .

In the case last cited the Albany general term held that knowledge of an injunction, information of its contents and presence in court when it was made, were fully sufficient to impose upon the defendant the duty of obeying it .so far as related to the pecuniary rights of the party by whom the injunction had been obtained. In the present case it is established beyond question, and, indeed, appears from his own affidavit, that Mr. Close knew of the injunction. The order of Mr. Justice Dykman, purporting to vacate it, appears to have been made upon his own application. Under these circumstances it would be idle for him to deny, nor does he deny, that he was aware of the existence of the injunction. Mr. Thacker seems to have been equally well informed on the subject. He was examined as a witness on the trial, which was proceeded with in disregard of the injunction, and it is charged in the present proceedings that at the time he was being examined “he was notified by the discussion then had that the injunction restrained and enjoined him from taking any proceedings in such cases. ” This statement is nowhere denied by Mr. Thacker, and must, therefore be taken as true.

The appellants contend that the injunction was void because it was granted in violation of rule 3J of the general rules of practice, which provides that no order, except in the first judicial district, served after the action has been noticed for trial, and within ten days of the circuit shall have the effect to stay the proceedings in the action unless made at the circuit where the case is to be tried, or by the judge who is appointed, or is to hold such circuit, or unless such stay is contained in an order to show cause returnable on the first day of the circuit. But this rule plainly applies only to orders made in the same action in which proceedings are sought to be stayed. It has no application to an injunction granted as a provisional remedy in another and

p. 225

•different suit, such as was the injunction which the appellants disregarded. The point that the justice had no jurisdiction to grant the injunction because the papers on which it was based, neither made nor tended to make a case conferring jurisdiction seems to be founded upon the claim that the injunction maybe violated with impunity by the defendant provided he is able to show upon a subsequent application that it has beqn improvidently granted.

No such rule exists for the reason that- the books are full of cases where a party will not be heard to attack an injunction of the court because it was improvidently granted where he has willfully violated the injunction until he has purged himself of his contempt. The case of the People v. Burgen ( 53 N. Y., 404 ), is a sufficient authority to the contrary if any were needed. It is there laid down that if the order is improvident, the remedy is by application to vacate it, or by appeal. So long as it remains in force, it is the duty of all parties to obey it, and the merits are not reviewable. The same rule is laid down in Clark v. Bininger ( 75 N. Y., 344 ), and also in People v. Dwyer ( 90 N. Y., 402 ).

But it is needless to multiply authorities upon this point as the rule is elementary.

The point that the justice erred in refusing any hearing •on the questions as to whether the violation of the injunction was calculated to, or did defeat or impair the rights or remedies of the respondent, is not raised by this appeal because no such adjudication upon the part of the court appears in its order.

It is a very well-established rule that expressions contained in opinions form no part of the judgment of the court and unless they are contained in the order appealed from cannot be considered in determining, the validity of the order. Upon the face of the order it nowhere appears that in determining the question of contempt the learned judge refused to enter into any inquiry into the merits. It is true that such expression was contained in his opinion; but it nowhere appears in the order, and if it had it would have made no difference because of the reasons heretofore assigned in that regard.

But it is urged that the attorney should not be punished for the alleged contempt, because the error into which he fell, was also entertained by the learned trial judge who presided at the Westchester circuit, and that the attorney should not be fined because he did not know what the law was better than the learned judge before whom he was practicing.

The force of this argument we are unable to see, because it would allow an attorney to deceive a judge into the making of an order which he had no authority to make, vacating an injunction, and thereby he would be at the

p. 226

liberty to violate it at his pleasure. No such rule can obtain, because it would open the door wide to attempts to defraud the court in obtaining orders for the vacation of injunction when the court had no jurisdiction to entertain any such application. It is clear that the circuit court of Westchester county had no power, whatever, to vacate an injunction issuing out of the supreme court. And it is, also, clear that an order entered in one action pending in. the circuit court of Westchester court, and made in such court could not affect an injunction made in another action-pending in the supreme court, first judicial district.

It is hardly necessary to cite the authorities going to show that where an injunction is granted, no judge except the judge granting the injunction, can vacate or modify it exporte and that no motion can be made outside of the-county of New York for the vacation of an injunction granted in an action pending in the supreme court, in the-first judicial district.

It is clear that the judge holding the circuit court of Westchester county was absolutely without jurisdiction and that his order was absolutely void and that when the-attorney went on and violated the injunction, he did so at his peril and was liable to be punished and should be punished. The attorney in that case is like .the man who starts-a revolution against the government of which he is a subject. If he succeeds he is a patriot. If he fails he is a traitor. In this case the attorney could only escape punishment by showing that the injunction was absolutely void. Having failed in establishing this proposition h& must suffer the punishment for his temerity.

The order should be affirmed, with the costs and disbursements.

Daniels and Bartlett, JJ., concur.