Daly v. Amberg

The defendant, his agents, actors, servants and employes were restrained by an order to show cause why the same should not be continued, during the pendency of the action, from producing, performing, representing, playing, printing, publishing, selling, copying or adapting, or in any way disposing of or using or causing or suffering to be produced, performed, represented, played, printed, published, sold, copied or adapted, or in any way disposed of or used, the dramatic composition or comedy, entitled “ Die Wilde Jagd,” either in whole or in part, or any copy, or imitation or adaptation or arrangement thereof.

Ineffectual efforts were made to serve this order and the summons and complaint, with the affidavit thereto annexed, upon the defendant, on account of his absence from the state. He then was, and previously had been, the manager and proprietor of the Amberg Theatre, situated on Irving Place and Fifteenth street in the city of New York, and was in the control and direction of the members of the theatrical company there employed, including the present appellants. It was designed to produce this play at the theatre on and after the 17th of October, 1890, and it was pro

A copy of the injunction order had been personally served upon the appellant Schoenberg on the fifteenth of the month, by Harold Swain, an attorney and counselor of this court, who was the managing clerk of the plaintiff’s attorneys. This person was served as the manager, at that time, of the business of the theatre. And from the exercise of authority by him as that has been described by Swain, and the statement made by Schoenberg to the affiant, Ernest 0. Wagenfuehr, that he had been in full charge of the theatre on Friday and Saturday of October the 17th and 18th there is little if any room for doubting that to have been his position, although he himself has sworn that he was no more than the defendant’s bookkeeper. The defendant would naturally delegate this authority during his own absence to some member of the company, and as no other person appeared to wield that authority, and this appellant seems to have assumed and used it, he has been properly concluded to have occupied that position, as he admitted himself to have done so. Upon this fact the proof preponderated in favor of the plaintiff.

To make a regular service of the injunction order, the Code of Civil Procedure, by § 610, has required that there shall be served with the order itself copies of the papers on which it has been issued. The service made upon this appellant on the 15th, while it did not fail to supply him with complete information that the productioh of the play at the theatre had been legally forbidden, was still irregular. And to remove that irregularity another service of the order, with copies of the papers on which it had been issued, was made upon the same person by Mr. Swain about the middle of the 17th of October, 1890. That complied with all the requisites for a complete service, and subjected him to the obligation of obeying the mandate of the law, that the play should not be produced.

The Code of Civil Procedure, by § 608, permitted the order to accompany the summons, as it did in this case, and that made the injunction regular. And while it should have contained a statement of the grounds on which it had been allowed, to comply with § 610 of this Code, the omission to do so was no more than an irregularity, and did not excuse the disobedience of the mandate. This appellant is one of the persons on whom the injunction was intended to operate and restrain. It included not only the defendant in the action, but also, by express direction, his agents, servants, employes and actors. And when these papers were served upon him as one of these persons, he had but one alternative, and that was implicitly to obey its command, and to abstain from the production of the play, which could readily be done, as that was at one time proposed, by substituting another in its place. It was not disobeyed for want of previous service on the defendant, but from a determination to disregard it, and that was a contempt of the court which had by one of its justices issued it

That knowledge of the restraint acquired by the person violat

There was nothing in the proceeding forming any legal excuse for proceeding with this play after it had been served, as it was,. with the other papers on the 17th of October.

It was found by the court that the disobedience of this appellant had defeated, impaired, impeded and prejudiced the rights and remedies of the plaintiff. And that conclusion was fully supported by the facts. His right, as it had then been established, was that the play should not be produced at this theatre while the injunction was in force. And that had been done in defiance of the remedy forbidding it. The case, therefore, was one for punishment. Code Civil Pro., § 2280. And without proof of actual loss to the plaintiff, that was authorized to the extent of a fine of $250, the amount imposed by the court, and imprisonment until the fine should be paid, not exceeding for the failure to pay the period of thirty days, and by imprisonment as a punishment, certainly as extended as that was included in the decision and order, which was for thirty days in addition to that resulting from the nonpayment of the fine. Code Civil Pro., §§ 2284-5. This was no more than was commensurate with the facts of the case and the necessity of securing the observance of the legal commands of the law.

The appellant Leo Winterfield was served with a full set of the same papers about the middle of the 17th day of October. He was the treasurer engaged in selling tickets for the production of the play. At the time of the service there is good reason for believing that he was well aware of their import, for the fact is proved that he brushed them out of the window of the ticket office, from which they fell upon the floor, and were then by another person, present, animated probably by the same understanding, kicked into the street. It is true that this appellant has endeavored to mitigate his act by way of explanation. But that, in view of what has been sworn to by another and entirely disinterested affiant, cannot be accepted as credible.

If the papers had been placed within his reach, as he says they were, for the defendant, then it was his duty, and he would without doubt have observed it, to retain them for him. But without yielding to what in that event would have been a very natural inclination, he immediately pushed the papers out of the window,

The case of the appellant August Walther is' not so flagrant. But still he did violate the injunction, irregularly, it must be admitted, served upon him. But the service which was made was sufficient, if he had understood the English language, to have apprised him of his duty. And when that is the fact, a mere irregularity of service, while it will form a good reason for setting it aside on a motion made for that purpose, will not excuse a disobedience of the order itself, People v. Sturtevant, 5 Seld., 263, 278; while it remains undisturbed, it will be complied with. But while it is stated that the effect of the papers was explained to him, he swears that he did not understand it. But that fact will not wholly excuse him, for he should have consulted some person to secure an explanation of the order and discovered his duty. He had been engaged in theatrical service for six years in this country, and during that time must have acquired some knowledge of the necessity of acquainting himself with the contents of formal legal papers. And that he failed to do. But still his case has been greatly mitigated by his ignorance of the language, although his offense has not been wholly removed. The court at the hearing so considered it, for the punishment by imprisonment was not imposed upon him, otherwise than to coerce the payment of the $250 fine. But as the facts appear this fine should be reduced to the sum of $100, which will be sufficient to inspire him hereafter with appropriate respect for the orders of the court, and with the duty incumbent upon him of ascertaining by the assistance of others what is intended to be exacted from him.

As to August Walther the order- should be modified by reducing it in amount to the sum of $100, and with that modification it should be in all other respects affirmed. And as to the appellants Herman Schoenberg and Leo Winterfeld, the order should be affirmed, with ten dollars costs and the disbursements.

Yan Brunt, P. J., concurs.