
    The Mayor, Aldermen and Commonalty of the City of New York, Resp’ts, v. John H. Starin, Impleaded, App’lt.
    
      (New York Superior Court, General Term,
    
    
      Filed June 27, 1888.)
    
    1. Injunction — Requisites of in certain cases— Code Civil Pro., § 1809.
    Code of Civil Pro., § 1809, whichprovides that an “injunction order suspending the general and ordinary business of a corporation * * * can be granted only by the court upon notice of the application, therefor, to the proper officer of the corporation, ’’etc., refers to a business done in fact, by a corporation, whether or not the charter permits them to do some other „ kind of business, which it might do but does not do.
    2. Same—Effect where individual is joined as defendant with the CORPORATION.
    An injunction order was made restraining the Independent Steamboat Company and Starin from running the steamboats named in the order as ferry-boats between New York and Staten Island or any other boats or vessels as ferry-boats between those places. The running of the steamboats enjoined by the order was the real business of the defendant corporation and it had no other business. The injunction order against Starin when obeyed, would suspend the general business of the said corporation The notice of the application for the injunction required to be given by said section had not been given. Held, that the injunction against Starin was against the intent and letter of the Code. That what could not be done directly could not be done indirectly.
    Appeal by defendant, John H. Starin, from an order adjudging him guilty of contempt of court in that he had violated an injunction.
    
      A. J. Dittenhoefer, for app’lt; Henry R. Beekman, counsel to the corporation, for resp’ts.
   Sedgwick, J.

The case is stated oy the counsel for respondent to he as follows:

“Starin was engaged in running an unlicensed, and, ' therefore, unlawful ferryboat, between Staten Island and New York by means of a corporation called the Independent Steamboat Company. This company was incorporated under the New Jersey act of April 7, 1875. The incorporators were persons other than Starin. The company’s business was to be that of common carriers, and was to be transacted at, to and from all the places in New Jersey accessible by water on the Hudson river, Kill Von Kull, Raritan Bay, and their tributaries, and the cities of New York, Brooklyn, and all places on the Hudson river, Staten Island and Long Island. It also appeared that the incorporators of this company were men in the employment of and under the control of the defendant Starin, that the boats used by the company belonged to Starin, or to the corporation controlled by him, and that its real business was to run ferries between New York and Staten Island.”

An injunction order was made restraining the Independent Steamboat Company and Starin from running the steamboats named in the order as ferryboats between New York and Staten Island, or any other boats or vessels as ferryboats between those places.

Starin, it is assumed, now disobeyed the order, and was found guilty of contempt, in disobeying it. He appeals from that order, and on this appeal claims that the injunction order is void under sections 1800 and 1812, as made without notice to the proper officer of the defendant corporation, and as it suspends the general and ordinary business of the corporation.

The facts that have been cited show that the running of the steamboats, enjoined by the order, was the real business of the defendant corporation. It was not a particular thing done in the course of the business. It was a business, and the defendant corporation had no other business as a matter of fact.

I am satisfied that the Code refers to a business done in fact by a corporation, whether or not the charter permits them to do some other kind of business which it might do, but does not do. The fact that really it ran a ferry unlawfully, necessarily involved, according to the purpose of the injunction, that its business should be stopped. Its business was stopped, so that the plaintiff might prevent the running of the ferry. The Code says the business shall not be stopped for any reason.

It is said that its incorporation did not justify its doing the business of running a ferry, and that in that sense it was not within its corporate powers.

Several things might be said. It is enough to say that when the injunction asked for, is to be aimed at the general and ordinary business of a corporation, thé section necessarily although impliedly forbids that whatever must be determined against the corporation as the foundation, or part of the foundation of the injuction, shall not be passed upon, if notice has not been given to a proper officer of the corporation.

In a case like this, a judge would call upon the plaintiff to show why such an order could be granted. The plaintiff would answer the business of the corporation is unlawful or ultra vires. The judge is obliged to say that a determination of that cannot be made without notice to the defendants. On notice, they may meet the position.

In other words, the statute when it prohibits such an injunction prohibits the means by which such an injunction can only be made. I am of opinion, then, that the order was void against the defendant corporation.

For reason of a similar kind it was. as I think, void against Starin. What cannot be done directly cannot be done indirectly. The injunction order against Starin, when obeyed, would suspend the general business of the corporation defendant. I mean to confine the bearing of what I say upon a case where the individual is joined as defendant with the corporation.

The case of the plaintiff substantially is, that while it must be conceded that Starin is one person and the corporation is another person by law, yet the corporation is a sham as far as it can be after the law has created it and given it definite rights against all, including the plaintiff and Starin, and Starin is really or in effect the corporation. If all this be true, yet in fact the corporation was the person who did the business. The injunction supposed that the two were one, and that if Starin exercised his authority over the incorporators as his employees as alleged, or over the boats as their owner, then what has been held to be the general business of the corporation would be stopped. I am of the opinion that the injuction against Starin is against the intent and letter of the Code.

If the injunction was against Starin as an agent of the corporation there can hardly be a doubt that it would be void against him. On this case, as it is framed by the complaint and the positions taken by the plaintiff under it, it appears that substantially the relief as against Starin is ancillary to and subordinate to the relief asked against the corporation. The former should follow the other and abide its disposition.

I am of opinion that the order adjudging the appellant guilty of contempt should be reversed, with ten dollars costs and disbursements to be taxed, and the motion to punish denied, with ten dollars costs.

Freedmait and Truax, JJ., concur.  