Greite v. Henricks — 53 N.Y. St. Rep. 852

Majority

p. 852

Charles Greite, Resp’t, v. Charles Henricks et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed July 28, 1893.)

Headnote

1. Contempt—Appeal.

Pending an action to restrain defendant from carrying on a saloon business in violation of a covenant not to do so, made on a sale of a similar business, the defendant threatened to evade an adverse decision by selling the business to one O. and that it should not be shut up no matter what the court decided, and two days before entry of judgment did sell to O The court adjudged him guilty of contempt for so doing and directed his commitment unless he rescinded said sale. Held, that an appeal from said

p. 853

order was premature ; that the final order should he awaited and the appeal taken from that.

2. Same—Interference to make judgment nugatory.

Defendant having made the transfer with the avowed purpose of rendering the judgment nugatory, was guilty of contempt.

Appeal from order adjudging defendant in contempt and directing Ms commitment to jail unless witMn tMee days after service of a copy of the order he purge himself of the contempt by procuring a cancellation of an assignment of a saloon business to one O’Connell.

David Swits, for app’lt; L, L. Van Allen (Martin J. Keogh, of counsel), for resp't.

A judgment was obtained by the plaintiff against the defendant, Charles Henricks, on the 19th of November, 1892, restraining him from carrying on a saloon business» The case was tried in October, 1892, and the decision was filed on the 5th of November, 1892. Pending the trial the defendant., Henricks, threatened, to evade an adverse decision, that he would sell to one O’Connell the business, and that it should not be shut up no matter what the court decided. A day or two before the entry of judgment he did sell the business to O’Connell, and it continued under O’Connell’s name thereafter. Henricks owned the title to the real estate, and had covenanted that he would not carry on a saloon business within a half mile of the same for five years from January 1,1891. The covenant he had received a large price for, and his violation of it caused a large loss to the plaintiff, who was carrying on a similar business on premises adjoining. The covenant had been given upon a sale of the business on the defendant’s premises, but he had forced the plaintiff to leave the same in gross violation of the spirit of the covenant. The court adjudged that he was guilty of contempt, and directed his commitment to jail unless he undid his transfer with O’Connell, and pay the costs of the motion. The appeal is from this order, and it seems that the appeal is premature. The final order should be awaited, and an appeal taken from that. Brinkley v. Brinkley, 47 N. Y., 40 ; Code, § 2281; Matter of Crosher, 11 N. Y. Supp., 504 .

If the appeal is proper, the order should be sustained. It is true that the formal service of the judgment was not made until after the transfer to O’Connell; but this transfer was made upon the avowed purpose of rendering the judgment idle.' He actively interfered to make a judgment of the court nugatory, and, therefore, was guilty of a contempt. King v. Barnes, 113 N. Y., 476 ; 23 St. Rep., 263 .

The forbidden acts were continued after the service of the order.

The order should be affirmed, with costs and disbursements.

Pratt, J., concurs; Dykhan, J., not sitting.