People ex rel. Clapp v. Fisk — 8 N.Y. Sup. Ct. 464

Majority

p. 464

THE PEOPLE ex rel. HAWLEY D. CLAPP, Appellant, v. LYMAN FISK and others, Respondents.

Headnote

Contempt—Mandamus — necessity of seal to writ of.

A mandamus having been ordered, requiring the National Trust Company to pay to the relator a certain sum out of a fund in its hands, the same was attempted to be issued without the seal of the court, and, in this form, was delivered to the secretary of the company. Another claimant upon the same fund, having obtained and subsequently served in due form a like mandamus, the same being duly sealed, the Trust Company paid, under the advice of counsel, the

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sum required by the second mandamus, leaving insufficient moneys in its hands to meet the full amount of the relator’s claim. Held, that the service of a writ of mandamus without a seal, is a nullity. Held, further, that the officers of the company, not having intended any contempt, but acting under legal advice, in pursuing what they thought their duty, may avail themselves of the merest technical objection in proceedings against them for contempt.

This is an appeal from an order of the Special Term of Kings county, denying a motion to punish Darius R. Mangam, the president, and James Merrill, the secretary, of the National Trust Company, of the city of New York (one of the defendants), and Thomas L. Rushmore, as for a contempt, in disobeying the mandamus issued in this case.

Jamies Emott, for the appellant.

J. H. V. Arnold, for National Trust Company.

Winchester Britton, for Rushmore.

The mandamus, ordered in behalf of the relator, ordered the National Trust Company to pay to the relator, the sum of $8,750, “out of the funds deposited by the commissioners,” to lay out Mammoneck avenue, in the county of Westchester. The relator was one of the claimants upon the fund so deposited, to the amount specified in the order. But, it seems that the court, simultaneously with the ordering of the mandamus in behalf of the relator, had ordered two other writs of peremptory mandamus, one in favor of Spencer and Hitchcock, and another in favor of Mary A. Dingee, who were also claimants upon the fund so deposited, ordering the payment of specific amounts in each case, out of the moneys so deposited. The total amount, so ordered to be paid by the three writs of mandamus, was more than sufficient to exhaust the entire amount of the fund, so on deposit with the Trust Company. The company first paid the amount of the claim of Mary A. Dingee, by the consent of the relator in this case. It then paid the amount ordered to be paid by the mandamus in favor of Spencer and Hitchcock, and the balance of the fund, amounting to $4,560.85, it has paid over to the relator. It appears that the Trust Company had and claimed no interest in the fund, but as mere

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depositaries; and it is shown by the affidavit of Mr. Meholls, who appeared as the counsel for the Trust Company, on the return of the orders to show cause why a peremptory mandamus should not issue in each of the three cases, which were all returnable at the same time, that he then stated to the court in behalf of the Trust Company, that there were not sufficient funds in the hands of the Trust Company, to pay all the three claims. Why the whole amount claimed by each of the claimants, was ordered to be paid by the Trust Company, instead of a pro rata proportion, does not appear. Possibly, the orders were so entered, through inadvertence on the part of the clerk or the attorneys. At all events, the orders were made, that a mandamus issue in each case, requiring the Trust Company to pay to each of the three claimants, the full amount of the claim in each case. Yet it clearly appears that no more was intended to be required of the Trust Company, than the payment of the amount so on deposit with it. As the orders were, that the mandamus should require the payments to be made out of the moneys so on deposit with the Trust Company, the company not having paid the relator in full, he made this motion that the president and secretary be punished as for a contempt. It appears that the mandamus, in favor of the relator, was attempted to be issued without a seal of the court, and, in this form, was delivered to James Merrill, the secretary of the Trust Company, on the evening of the 2d day of September, 1872, on which day, all the orders for the three writs of mandamus were granted, but no demand for payment was then made. The writ in favor of Mary A. Dingee, was served the same evening, and the order and writ in favor of Spencer and Hitchcock, were served about nine o’clock the next morning. A peremptory demand having been made in behalf of Spencer and Hitchcock, with the service of the writ in their behalf, and their attorney claiming that the service of a writ without a seal, in behalf of the relator, was ineffectual, and objecting to the payment of the relator before Spencer. and Hitchcock had been paid, the officers of the Trust Company advised with their counsel, and, being advised by him that under the circumstances they were bound to pay-the amount specified in the writ in favor of Spencer and Hitchcock, no sealed writ of mandamus then having been served under the order direct

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ing the mandamus to issue in behalf of the relator, they did so. The insufficiency of the fund for the payment of all the claims in full, and the objection that the writ attempted to be served in behalf of the relator was without a seal, were communicated to the relator, who was present at the office of the Trust Company, and .it was then agreed that the counsel for the Trust Company should take further time to consider the matter till one or two o’clock of the same day; with which arrangement, as stated by the officers of the Trust Company, all the parties, including the relator, appeared to be satisfied. It further appears that after further considering the matter, and taking additional advicé, the counsel of the Trust Company did, between one and two o’clock of that .day, advise the company that it was bound to pay the amount called for by the Spencer and Hitchcock writ, which it accordingly did, the amount thus paid being $6,500. The affidavits of Merrill and Mangam show that the company stood indifferent between the claimants in the several writs, and acted, throughout, under the advice of counsel, and with the desire and intention to obey the mandates of the court, in such manner as they were required by law. Ho sealed writ of mandamus, in behalf of the relator, was ever served upon, or exhibited to, any of the parties now proceeded against, or to any officer of the company, until after the payment in pursuance of the mandate of the writ in behalf of Spencer and Hitchcock, and, so far as appears, no such writ was ever sealed, till after such payment.

The motion appealed from, was denied, upon the ground that the service of the writ, in behalf of the relator, without a seal, was a nullity.

We are of the opinion that the decision at the Special Term was correct.

A seal is necessary to a writ of mandamus.^[2] By the judiciary act of 1847, section 57, it is provided that no process, signed by the attorney, solicitor or party by whom issued, except such as shall be issued by special order of the court, shall be deemed void or voidable, by reason of having no seal, or a wrong seal thereon. The same distinction between writs issued at the option of the party, and those which required special allowance, had previously existed as

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to the use of seals, which the clerks of the court were authorized to issue in blank. These 'could not be affixed to writs requiring allowance, but the latter must be specially sealed.^[2] Thus, the legislature has seen fit to provide that a writ, specially authorized by the court, must be specially sealed, and it seems to follow, that such a writ, without any seal, is not sufficiently authenticated according to law, to be the basis of proceedings for contempt; and it is held that an officer, acting under a process, without a seal, which the law requires to be sealed, is a trespasser,^[3] The proper mode of service of a writ of mandamus, where there are several defendants, is by showing the original writ under the seal of the court, and delivering a copy.^[4] No such service was made in this case. The Court of Chancery has, it is true, held, in many instances, that the mere knowledge that an injunction has been issued by it, forbidding the doing of certain acts, is sufficient on which to found a proceeding for contempt against a party having such knowledge, and without a personal service of the writ under seal. But, so far as we understand, this stretch of power has not been adopted in the courts of law, and in reference to writs issued under the common law.

But, aside from these considerations, it seems quite manifest that no contempt of the court, or disobedience of its process, was intended. On the contrary, the officers of the company intended to obey the commands of the court. Those commands could not be literally complied with, and they acted upon careful legal advice in pursuing what they thought their dutyand, under such circumstances, the merest technical objection is available against a proceeding for contempt.

The return of the defendant Bushmore shows a compliance, on his part, with the mandate of the writ,.and it does not appear that the relator has suffered anything by any delay in the signing of the check by Bushmore.

The order appealed from must be affirmed, with ten dollars costs.

Present — Babnaed, P. J., Tappen and Taloott, JJ.

Order affirmed, with ten dollars costs.

* Graham’s Pr., 120.

† † Millett v. Baker, 42 Barb., 215 , and cases cited.

‡ ‡ Tapping on Mandamus, 330; 2 Crary’s Prac. Sp. Pro., 68.

Footnotes

* Bouvier’s Law Dic., Writ; Burrill’s Law Dic., Writ; 2 Crary’s Prac. Sp. Pro., 68; 2 R. S., 277, § 8.