In re the Board of Health — 76 N.Y. Sup. Ct. 110

Majority

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In the Matter of the Application of the Board of Health of the City of Yonkers, Respondent, to Punish John Copcutt, Appellant, for Contempt.

Headnote

Contempt of court — violation of an injunction obtained by a board of health — technical objections.

On. the return of an order to show cause why a defendant should not be punished for contempt for having violated an injunction, obtained by the board of health of a city, forbidding him to draw off the waters of certain mill ponds below the level of the dams during the summer, the defendant objected that the moving papers were defective in that they were not entitled in the action in

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•which the injunction was granted, that the contempt proceeding was not instituted by the attorney of record for the plaintiff in such action, and that neither the original nor a copy of the injunction order had been served on him; the objections were overruled and an order made adjudging the defendant guilty of contempt.

Held, that these technical objections were not well founded, and that the order should be affirmed, it appearing that the proof of the violation of the injunction was sufficient, and that previous to the institution of the contempt proceeding the defendant was notified of his violation of the injunction, but gave no heed thereto.

Appeal by the defendant, John Copcutt, from an order made at the Westchester Special Term on the 2d day of December, 1892, upon the application of the Board of Health of the city of Yonkers, and entered in the office of the clerk of Westchester county, adjudging the defendant guilty of contempt of court, and punishing him by fine therefor.

On the 8th day of July, 1891, an order to show cause, containing a temporary injunction restraining John Copcutt, his agents, servants and officers from drawing off the water from the mill ponds of the Nepperhan river, in the city of Yonkers, known as the first, fifth and sixth water powers, between the first day of May and the first day of November, so as to expose the surface of the ponds below the level of the dams, was obtained by the Board of Health of the city of Yonkers in an action then commenced in the Supreme Court, entitled The Board of Health of the City of Yonkers v. John Copcutt. That order to show cause was served upon Copcutt and was made returnable at the city of Poughkeepsie, before a justice of the Supreme Court, on the 10th day of July, 1891. On the return day of said order, after hearing counsel for the Board of Health in support of the application,to continue the injunction, and counsel for Copcutt in opposition thereto, the judge continued the injunction, and made it permanent pending the action.

In the month of August, 1892, the Board or Health directed the city attorney of Yonkers to institute proceedings against Oopcutt for violating the terms of the injunction order. The city attorney thereupon wrote a letter to Oopcutt informing him that proceedings would be commenced unless he ceased violating the provisions of that order. On August 31, 1892, the Board of Health, through the city attorney, obtained an order to show cause why John Copcutt

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should not be punished for contempt for violating the terms of the injunction order.

By this order to show cause, which, as well as the papers on which it was obtained, was entitled In the Matter of the Application of the Boa/i'd of Health to Pv/nish John Copcutt for Contempt, the present proceedings were instituted.

Upon the hearing, counsel for Copcutt took three foimal objections to the proceedings, as follows: (1) That the moving papers

are defective for that the same are not entitled in' the action in which the injunction was granted which was alleged to have been violated. (2) That Joseph F. Daly, Esq., is the attorney of record in said action, no attorney has been substituted in his place as such, and the proceedings herein were not instituted by him. (3) That the injunction order alleged to have been granted and violated, or a certified copy or any other copy thereof, has not been served upon the defendant or upon his attorneys in said action.

The order appealed from, adjudging Copcutt guilty of contempt and punishing him therefor by a fine of fifty dollars, was thereupon made.

Arthur J. Burns, for the appellant.

James M. Hunt, for the respondent.

This is an appeal from an order of the Special Term adjudging John Copcutt guilty of contempt for violating an injunction of this court, and imposing a fine upon him for such violation.

The objections to the order are mostly technical, and but a very faint effort is made to deny the offense.

The proof of violation of the injunction is amply sufficient, and the technical objections are not well founded.

The defendant has manifested no disposition to yield obedience to the mandate of the court, although it related to a matter of the utmost importance to the public.

Previous to the institution of the proceedings to punish the defendant for contempt he was notified of his violation of the injunction, and informed that a cessation of his contumacy would secure immunity for the past, but he gave no heed to the notification.

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If the process of the court is to be vindicated this order must be upheld.

The order should be affirmed, with costs.

Barnard, P. J., concurred; Pratt, J., not sitting.

Order affirmed, with costs and disbursements.