People ex rel. Cauffman v. Van Buren — 44 N.Y. St. Rep. 820

Majority

p. 820

The People ex rel. Joseph Cauffman et al., Resp’ts, v. John Van Buren and Frank Hopkins, App’lts.

(Supreme Court, General Term, Fifth Department,

Filed April 13, 1892.)

Headnote

Contempt—Injunction.

Plaintiffs were attachment creditors and the defendants are the attorney of other creditors and the sheriff who made a levy on the debtors’ property prior to the levy of the attachment. Plaintiffs claimed that the judgments on which the executions were issued were void and brought action to-set them aside and procured from the Monroe county judge an injunction to-restrain the sale of the property. Defendant Hopkins procured from the-special surrogate of Oswego county an order éx parte purporting to set aside the injunction and purchased the property on the sale for the amount, of the judgment. Helds, that the special surrogate had no jurisdiction to-grant the order and that the facts showed a prima facie case of contempt.

Appeal from an order of the Monroe special term, adjudging the appellants guilty of a contempt of court in violating an injunction order, and thereby defeating, impairing, impeding and prejudicing the rights of the plaintiffs in the action of Joseph Cauffman and others against Hiram Klock and others, and that, the loss to the plaintiffs thereby was $1,470.32, and fining the-defendants that amount, and directing their imprisonment until they should pay the fine.

M. M. Waters, for app’lts ; William F. Cogswell, for resp’ts.

The appellant Hopkins, as attorney, recovered judgments in favor of the First Mational Bank of Oswego, and in favor-of Messrs. Mertens, Dissell and others, respectively, against Hiram Klock and Edgar A. Tiffany. Klock & Tiffany were merchants-owning a stock of goods in a store in the city of Oswego, M. Y. He had as such attorney issued executions upon these judgments,, and placed them in the hands of the appellant Yan Burén, who-was sheriff of the county of Oswego, and Yan Burén had levied, the executions upon the stock of goods of Klock & Tiffany. The respondents were creditors of Klock & Tiffany to the amount of. $1,346.75, with some interest, and they commenced an action against them to recover their demand, and caused an attachment, to be issued and levied upon said stock of goods; such levy, however,. was made after the levy under said executions. The plaintiffs learning of the levy of the executions mentioned, and claiming that the judgments upon which they were issued were void, obtained an injunction order from the county judge of Monroe-county in an action in the supreme court, restraining Yan B aren,, as the sheriff of Oswego county, and the plaintiffs in the judg

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ments upon which the executions had been issued, their attorneys,, etc., from selling, or in any manner interfering with the said stock of goods, by virtue of the executions, until the further order of the court, and staying all proceedings on the part of the plaintiffs under said judgments until the final determination of the action. Copies of the injunction order were duly served upon the appellants; they, however, proceeded in disregard of the injunction order, and caused the goods to be sold by virtue of the executions ; the sale was to Mr. Hopkins for the sum of $17,000, that being about the amount necessary to satisfy the executions. Before proceeding to sell the goods under the executions, the appellant Hopkins procured from L. W. Baker, special surrogate in and for Oswego county, upon an ex parte application therefor, an order purporting to vacate and set aside the said injunction order granted by the Monroe county judge. These proceedings were thereupon instituted to punish the appellants for disobedience of the injunction order, and the order appealed from was made, imposing a fine upon them for the full amount of the claim of the respondents, amounting with interest and costs to the sum of $1,470.32.

We agree with the conclusion of the trial justice that the special surrogate of Oswego county had no jurisdiction to make the order he did. It was the duty of the defendants to obey the inj unction order while it was in force. If, as they claim, the injunction order was improvidently granted, they should have taken proceedings and obtained an order vacating it. It is contended by the defendants’ counsel that the evidence presented to the trial court failed to establish that the plaintiffs sustained any damages in consequence of the violation by them of the injunction order, and insist that the sale under the executions did not change or affect the rights of the plaintiffs under their attachment. The plaintiffs concededly had a levy upon property of sufficient value to pay their debt. The defendants, in violation of the injunction order, sold the property by virtue of executions which had been levied upon the property prior, in point of time, to the levy of plaintiffs’ attachment. Hopkins thereby obtained a prima facie title to the property, and apparently destroyed the lien of plaintiffs’ attachment, thereby converting the attached property to his own use, in defiance of the attachments. The defendants’ contention then, and still is, that their executions were a lien upon the property superior to the plaintiffs’ attachment. Had they thought otherwise, they could, when these. contempt proceedings were commenced, at once have taken proceedings to render nugatory the sale made 'in violation of the injunction order, and thereby have purged themselves of their contempt. Instead of taking such a course, they contended at the trial, and still insist, that their proceedings were entirely regular and legal.

The plaintiffs made a prima fade case against the defendants, which justified the making of the order appealed from.

The defendants having, as we think, failed to make out a defense, the order appealed from should be affirmed, with costs.

Order appealed from affirmed, with costs.

Dwight, P. J., and Macomber, J., concur.