
    THE MAYOR, ALDERMEN, AND COMMONALTY OF THE CITY OF NEW YORK, Plaintiff and Respondent, v. THE NEW YORK AND STATEN ISLAND FERRY COMPANY, AND THE NORTH SHORE STATEN ISLAND FERRY COMPANY, Defendant and Appellant. THE PEOPLE OF THE STATE OF NEW YORK, ex rel. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Respondent, v. WILLIAM H. PENDLETON, Appellant.
    I. INJUNCTION.
    1. Violation of, how established.
    
      a. May be by facts and circumstances.
    
    (1) The sale of a boat used on a ferry between certain points as and for a ferry boat, immediately on the rendition of a decision directing an injunction against the seller restraining him from running a ferry between these points, and the continued use thereafter of the boat for the same purposes will, with other circumstances, constitute a violation of the injunction.,
    3. Violation of, what constitutes.
    
      
      a. Substance must le regarded.
    
    1. Where there is an injunction against the running of a ferry between certain places, and after the injunction the point of departure, at one of the places is changed from, one wharf to another, the route in all other respects continuing to be the same, there is a violation of the injunction, notwithstanding such change.
    2. An injunction against the use of a wharf for any of the purposes of a specified ferry on a specified route, is violated by laying the boat at the wharf during the night to take in supplies of coal and water, to be used on her ferry route the next day, and for the accommodation of the boat during the night.
    n. CONTEMPT, PROCEEDINGS TO PUNISH FOR.
    1. Interkosatories, when not necessary.
    
      a. When the proceedings are initiated by an order requiring the party to show cause why he should not be punished for contempt, interrogatories are not necessary.
    (1) This although the order to show cause does not specify in what respect an injunction order is claimed to have been violated, and what punishment is desired. >
    2. Injunction not served, violation of.
    
    
      a. Parties simply hearing that an order for an injunction has been granted, and disregarding it, can be adjudged guilty of contempt.
    3. Injunction, service of.
    
    
      a. Service of a certified copy of an order of injunction granted by the court, is sufficient in contempt proceedings.
    Before Monell, Oh. J., and Curtis, J.
    
      Decided January 3, 1876.
    Appeal from two orders, the former adjudging both defendants in contempt, and the latter adjudging William H. Pendleton in contempt.
    The suit was commenced May 21, 1875, to restrain the New York and Staten Island Ferry Company from running a ferry from New York city to the eastern shore of Staten Island without a franchise or license from the plaintiff, and also to restrain the use of plaintiff’s wharf property at the foot of Whitehall Street for any of the purposes of such ferry.
    The day the suit was commenced, a preliminary injunction was granted restraining the use of the wharf property for such purpose, and an order to show cause was therewith granted why such preliminary injunction should not be continued during the pendency of the action. A motion was also made to enjoin the running of the ferry by the New York and Staten Island Ferry Company. On June 15, 1875, the motions to continue the injunction, and to restrain the running of the ferry, were granted. The defendant’s attorney read the opinion that morning. The next morning it was published in several newspapers, and the formal order of the court was entered at half-past ten, A. m., of the same day, and certified copies were between two and three, p. m., served on the defendant’s attorney, and upon the pilot and engineer of the steamboat, D. R. Martin, which was used for the purposes of such ferry; and on the morning of June 17, a certified copy of the order was served upon Wm. H. Pendleton, the president of the two defendants.
    After May 20, 1875, the point of departure from New York of the ferry boat, D. R. Martin, was changed to another pier, but it still continued to be used and advertised as a ferry boat upon, in other respects, the same route to and from Staten Island, with the same master and time-table, and it still continued to occupy the plaintiff’s wharf property at the foot of Whitehall Street, from nine o’clock every evening until the next morning, to take in supplies of coal and water to be used on her ferry route the next day, and for the accommodation of the boat during the night.
    On June 16, at noon, a bill of sale of the D. R. Martin was executed by the New York and Staten Island Ferry Company to William H. Pendleton, their president. The boat continued running as before, and on June 19, a bill of sale of her was executed by Wm. ET. Pendleton to one Charles C. Birdseye, and thereupon, on the same day, an order was granted for both defendants and Wm. H. Pendleton to show cause why they should not be punished for contempt of court.
    The motions were granted that they be punished for contempt, and from the orders entered to that effect, the defendants and Pendleton appeal.
    
      Sidney R. Harris, of counsel for appellant, submitted an elaborate brief, in which he urged :
    I.The injunction order must be limited to the grounds stated in the complaint and the prayer for relief, and the defendants were not bound by the order further than it was warranted by the complaint (Freeman v. Dunning, 4 Edw. ch. 598).
    II. If an injunction is capable of two constructions, proceedings for contempt will not be entertained, where a party has adopted a construction of the order, which is afterwards claimed to be erroneous (Weeks v. Smith, 3 Abb. 211). .
    III. An injunction should be so explicit upon its face as to apprise the party what he is restrained from doing without resorting to the bill (Sullivan v. Judah, 4 Paige, 444; Moat v. Holbein, 2 Ed. Ch. 188).
    IV. These proceedings are based entirely upon information and belief. Ho sources of information are stated, and therefore there was before the court no legal proof of any violation of the order of June 16 or May 21, and the court had no jurisdiction to make the order therein (Parkhurst v. Kinsman, 2 Blatch. 78 ; Magennis v. Parkhurst, 3 Green Ch. B. 433).
    Y. If Mr. Birdseye uses the boat for any unlawful purpose, the court is open to any party having the right to complain against him, to use its process for the purpose of enjoining such use; but Mr. Birdseye is entitled to be heard upon any such application, and his right to use his own property can not be affected by proceedings in a controversy to which he is not a party (People v. Albany R. R. Co., 12 Abb. 171, 175, 176).
    VI. There is nothing in the idea of constructive notice, as claimed by the plaintiffs. BTor is the knowledge of Mr. Harris of the decision of June 15, any evidence that Mr. Pendleton had such knowledge, as Mr. Harris testifies that he did not see or inform Mr. Pendleton until late in the day of June 16. Knowledge of the attorney is not knowledge of his client of a decision of court. In Hillik er v. Hathorne (5 Bosw. 710) it was held that it was not enough that defendant had heard in a general way that the case had been decided, but that he must have known the particulars. To the same effect is Elliot v. Osborne (1 Cala. 396). The rule in certain classes of cases that notice to the attorney is notice to the client, is limited to the ordinary and regular proceedings in the suit; an injunction order is not within the rule, and no case can be found holding that proceedings for willful contempt can be based on knowledge of the attorney not communicated to the client. On the contrary, the rule is, that knowledge of facts will not be imputed which relate to the motives or intentions of the principal (10 House of Lords R. 114; Ramsdell v. Craighill, 9 Ohio, 197). And the idea of notice from the publication of the decision in the city newspapers is decided adversely to plaintiffs in Morrisson v. Universal Marine Ins. Co., L. R. (8 Exch. 40); S. C. (4 Eng. R., Moak's Ed. 433).
    VII. We deny that the sale, if sufficient to transfer the legal title of the boat, could be an evasion of the injunction (12 Abb. 171). An act is not an evasion of an injunction which is strictly lawful, and against the d Ing of which there is no restraint, even if the effect should be that the injunction became inoperative. The law does not permit, by such indirection, to restrain parties, or bring them into contempt (12 Abb. 175). Before it can be claimed that Mr. Pendleton or the defendants have willfully violated the order of June 16, it must appear that Mr. Pendleton knew that a sale of the boat could not lawfully be made without evading the injunction. There is no proof of this, and an examination of the terms of the order would not give such information, and the want of it is fatal to these proceedings (People v. Compton, 1 Duer, 533).
    VIII. Mr. Pendleton acted under the advice of counsel, and it is erroneous to grant an order, as for willful contempt, where the party has strictly followed the advice of his counsel (Hawley v. Bennett, 4 Paige, 163; Ramsey v. Erie R. R. Co., 45 N. Y. 637; Billings v. Carver, 54 Barb. 40 ; Erie R. R. Co. v. Ramsey, 3 Lansing, 178). No intention to violate an order of court can be inferred from the doing of a lawful act (12 Abb. 171, 175, 176, per Judge Hogeboom).
    IX. The injunction order of May 21 was not violated by the fact that the D. R. Martin took in a supply of coal and water at Pier 1. The affidavit on the part of the defendants shows that the D. R. Martin obtained a permit from the Croton Department to take in a supply of water, which was to be delivered at that pier, and that, prior to the institution of this suit, a contract had been made for the delivery of coal to the D. R. Martin, which, by its terms, was to be delivered at that pier, and not elsewhere. It will be seen, therefore, that the D. R. Martin was necessarily obliged to resort to this pier, for the purpose of obtaining water and coal. No ferry was operated from Pier No. 1, after the preliminary injunction; no passengers or freight were transported from that pier. The D. R. Martin was, in fact, running from another pier, namely Pier No. 8. We submit, therefore, that the use of Pier No. 1, for coal and water, is no violation of the injunction.
    X. Interrogatories should have been filed by the plaintiffs before any final adjudication upon the alleged contempt (3 R. S. 536 ; 1st ed. 851-510). Where the proceedings are by order to show cause, interrogatories must be filed (1 Crary’ s Spec. Pro. 159 ; 3 R. S. 526, 1st ed. ; Albany City Bank v. Schermerhorn, 9 Paige, 375 ; McCredie v. Senior, 4 Id. 378; Pitt v. Davison, 37 Barb. 98; McCredie v. Senior, supra). This was the practice at common law (Pitt v. Davidson, supra).
    
    XI. The order to show cause in this proceeding does not show in what respect the injunction has been violated. This makes it a necessity that interrogatories be filed (Magennis v. Parkhurst, 3 Green. Ch. 433). And the only way that the defects of the order to show cause can be remedied, is by the filing of the interrogatories. Nor does the order to show cause state the nature of the offense, whether criminal or otherwise, nor state what punishment is asked. The English practice requires this (2 Daniells, Ch. P. 2).
    XII. We claim that the plaintiffs have not been technically regular, because there never has been any such service of the last injunction order in this case as would justify the proceedings by way of attachment. The affidavits show that the original injunction order never was exhibited, and that only a copy was served, and such service has repeatedly been held to be insufficient (Coddington v. Webb, 4 Sandford—with which opinion all judges of this court concur; Watson n. Fuller, 9 How. Pr. 425; Becker v. Hager, 8 Id. 68 ; see also section 302 of the Code, which requires the defendant to be duly served).
    XIII. If there has been any breach of the injunction or any contempt, it. has been waived (Anon, 15 Ves. 174; 1 Daniell Ch. Pr. 509),
    
      
      Wm. C. Whitney, corporation counsel, and Henry E. Davies and Julian T. Davies, of counsel for respondents, submitted an equally elaborate brief, in which they urged :
    I. The injunction is not broader than the complaint. The complaint clearly seeks two things. 1. To stop the running of an unlawful ferry. 2. To restrain the use of the plaintiff’s own wharf property for the purposes of such unlawful ferry. Even if the injunction was broader than the bill, it must be obeyed (Richard v. West, Green's Chan. Rep. 456 ; Peck v. Yorks, 32 How. Pr. 408).
    II. The property was used almost half the day as a store house at which to refurnish, refit, and preserve the boat for the succeeding day’s unlawful business. This was certainly using it in violation of the order forbidding its use “in any manner in the furtherance and assistance” of that ferry (See High on Injunctions, sec. 866). Besides being thus used to enable the boat to violate the plaintiffs’ ferry lights, by its being used to the extent stated for an unlawful purpose, the plaintiffs were exposed to claims for loss or damage (See Chap. 583, Laws of 1873, p. 895).
    III. An injunction directed to a corporation is binding on all who are authorized to act for it, although directed to a corporation by its corporate name (People ex rel. Davis v. Sturtevant, 9 N. Y. 263 ; People v. Albany & N. Y. R. R. Co., 12 Abb. 171 ; Wellesley v. Mornington, 11 Beavan, 181). Though a person be not a party by name, yet, under the name of “officers and members,” any such who, knowing of the existence of an injunction against a party, its “ officers and members ” violate it, are guilty of contempt (Rorke v. Russel, 2 Lansing, 242). A party agreed not to carry on a certain business within certain limits ; held, that he was bound not to carry it on as agent for another person, when himself enjoined from carrying on the business (Ewing v. Johnson, 34 How. 202). Held, that defendant, who had permitted another person to erect a fence on defendant’s land, which defendant was enjoined from erecting, was guilty of a contempt, because he had the power to prevent the fence being erected (Wheeler v. Grilsey, 35 Id. 139). As to officer or agent being bound by an injunction against his principal or employer (see cases cited). The president of the City Bank of Buffalo was adjudged guilty of contempt when, by concealing from other officers of the bank the service of an injunction, the effect of the order was lost as they proceeded to do the acts enjoined (Bank Commissioners v. City Bank of Buffalo, cited in 1 Barb. Chan. R. 636).
    IV. The injunction becomes operative from the time of the order for it, not from its date, or from the time of its being drawn up (High on Injunctions, sec. 852, also secs. 853 and 854; Osborn v. Tannent, 14 Vesey, 136 ; Money v. Jordan, 13 Beavan, 229; St. John’s College v. Carter, 4 Mylne, &c., 497; Blood v. Martin, 21 Geo. 127; Woodward v. Earl of Lincoln, 3 Swanston, 626). Parties hearing of an order for an injunction being granted, and disregarding it, can be adjudged guilty of contempt (Hull v. Thomas, 3 Edwds. Ch. 236). Service on a solicitor is good and sufficient to bring party into contempt, and sustain commitment (People ex rel. Morrison v. Brower, 4 Paige, 405). Where defendant has knowledge that an order has been issued, he will be liable for contempt if he disobey it (Livingston v. Smith, 23 How. 1; Ewing v. Johnson, 34 Id. 202; Matter of Feeny, 4 Bank. Reg. 70 or 223).
    V. The entire circumstances of this case made it apparent that there was a violation, and that it was carefully planned, and was willful, and therefore criminal (People v. Compton, 1 Duer, 512).
    VI. The business transacted between Staten Island and New York has been, and is to be, regarded as a ferrying business (Matter of Sylph, 4 Blatch. 24; Conway, et. al. v. Taylor’s Executor, 1 Black, U. S. Sup. Ct. 603; The Elizabethport and N. Y. Ferry Company v. The United States, 5 Blatch. C. C. 198).
    VII. A United States coasting license gives no authority to operate a ferry, and does not override state laws in regard to ferries (Gibbons v. Ogden, 9 Wheaton, 203; Conway v. Taylor’s Executor, 1 Black, U. S. Sup. Ct. 603; Fanning v. Gregoire, 9 How. (U. S.) 534; The Elizabethport and New York Ferry Co. v. United States, 5 Blatch. C. C. 198). Our own state courts have upheld this view (Steamboat Co. v. Livingston, 3 Cow. 754).
    VIII. The opinion of Judge Speib evidently characterizes the conduct of defendants and of Pendleton as a “ willful disregard ” of the injunction order. It is therefore punishable as a 11 criminal contempt” (See page 288, 2d vol. Edm. Stat. sec. 10, sub. 3 ; also page 553, sec. 1, sub. 3). When an order to show cause is granted upon affidavits, further proceeding by interrogatories is not necessary. The court can order punishment directly upon the affidavits (Yates v. Lansing, 9 Johns. 419 ; King v. Vaughan, Doug. 516; 4 Blk. Com. 287; Watson v. Fitzsimmons, 5 Duer, 629; Taylor v. Baldwin, 14 Abb. Pr. 166; Pitt v. Davison, 37 N. Y. 235; People v. Campbell, 40 Id. 133, 137; Brush v. Lee, 1 Abb. Ct. of Ap. Dec. 238). In fact, interrogatories were not necessary, as every fact alleged as misconduct was admitted, except knowledge by Pendleton of the decision of June 15, and on interrogatories nothing but this denial would have been elicited from him. The only other denials were of intentions, and as to this, the court need not take proof unless it desires it (Lathrop v. Clapp, 40 N. Y. 335, 338; Batterman v. Finn, Id. 340). For a full discussion of practice, of right to punish, amount of punishment and allowance, costs and counsel fees, see People r. Compton (1 Duer, 512).
    IX. In proceedings against parties, the papers should be entitled in the action (Brown v. Andrews, 1 Barb. 227; The People, ex rel. Young v. Craft, 7 Paige, 325 ; Stafford r. Brown, 4 Id. 360). In proceedings against persons, not parties by name, the papers should be entitled in the action down to the order, declaring them in contempt—that order and all subsequent papers should be in the name of the people on the relation of the person prosecuting (Stafford v. Brown, 4 Paige, 362; Folger v. Hoogland, 5 Johns. 235 ; People v. Ferris, 9 Id. 160).
   By the Court.—Curtis, J.

The plaintiffs insist that the use made of the property by the New York and Staten Island Ferry Company, after May 21, was a violation of the terms of the order of that date, and that the North Shore Staten Island Ferry Company and its officers also violated such order in permitting such use. They further insist, that the transfer of the boat “D.E. Martin,” was made at such a time and under such circumstances as to show that it was not a regular business transfer, made for the sole purpose of disposing of all interest in, or connection with, the boat and its future use, but that it was so planned and consummated that, though the nominal title passed, the substantial right of property and control of the boat remained with those who previously had it, thus furnishing them with means for deceiving the court, and with a cover under which to defy its orders, and to continue a violation of law, and of the plaintiff’s rights.

The appellants claim, that their use of the plaintiff’ s wharf at the foot of Whitehall Street was not a violation of the order of May 21, and that the sale of the ferry boat, by the New York and Staten Island Ferry Company, to its president, Pendleton, June 16, was without notice of the decision, and was in good faith and for value, and that his sale to Birdseye on June 19, was also for value, and was made to avoid even the appearance of a violation of the injunction by the New York and Staten Island Perry Company.

The appellants further claim, that after Wm. H. Pendleton became the owner of the boat in his individual capacity he was not restrained by the injunction, and that he had the right to use it as he did after June 16, to run a ferry from New York to Staten Island, and that Birdseye or any other person who succeeded him as owner, succeeded to the same rights.

The claim of the appellants, that the sale of the ferry boat was without knowledge of the decision, and was in good faith, and with no intent that she should be run in violation of the injunction, meets with some difficulties. It is not a conclusive circumstance, but it is a remarkable coincidence, that the sale of the boat to Mr. Pendleton should have been made on June 16, the very day the injunction order was entered, and it is extraordinary that neither the defendants nor Mr. Pendleton had heard or read of this decision, which had been already spread before the public generally by the press, and which in so important a manner affected their business, and which their attorney had read the previous morning.

It is but reasonable to suppose the attorney would have notified his clients at once of this decision, and it is strongly and repeatedly urged in the appellants’ points, that he testifies, that “he did not see or inform Mr. Pendleton” of it until about 3 p.m. of June 16, and after the sale of the boat. The affidavit of the attorney does not sustain this view of it, and while it omits to state whether or not he notified Mr. Pendleton of this decision on the previous day, it uses this language, “ It is true deponent read the opinion of Justice Vaw Vobst, the forenoon of June 15, but deponent did not see Mr. Pendleton until the afternoon of June 16, a,bout 3 p.m. as nearly as deponent recollects. That Wm. H. Pendleton resides at Staten Island; that deponent spoke to Mr. Pendleton about said decision, when he called to see deponent on the afternoon of June 16, for the first time.” If he could have corroborated Mr. Pendleton’s statement by saying that he omitted to notify him previously to this interview he could have so stated, as it is of comparatively little importance when he first “ spoke ” to him about it.

Again there is an additional circumstance not calculated to inspire confidence in the good faith of the sales of the boat. They are made for the apparent consideration of one dollar, but it is claimed by Mr. Pendleton that as a consideration he further assumed an indebtedness of the company amounting to fifty thousand dollars and upwards, incurred by the company in respect to the boat, and that Mr. Birdseye, when he bought, assumed the payment of the same indebtedness, and relieved Mr. Pendleton of his responsibility. It is singular that in transactions of this magnitude, and in the assumption of the payments of debts of third parties, there appears to have been no instruments executed to give them effect and validity, at least none are presented in the papers, nor is the appellants’ statement strengthened by the omission by the other officers of the company and by Mr. Birdseye, to say anything in corroboration. These transfers of the boat, do not seem to have been for an adequate consideration stipulated between the sellers and the purchasers, and made in the ordinary and prudent transaction of business, and when considered in connection with the continued running of the boat for the same ferry purposes, after the sale by the company, and with the other difficulties of the appellants case previously remarked, confidence is not inspired in the good faith of the sale, and the desire to avoid violating the injunction claimed by the appellants.

In the plaintiff’s moving papers it is alleged that Mr. Pendleton, the president of the companies, has publicly declared his intention of evading the injunction and process of this court, by further transfers of the said boat, and that said Pendleton in such connection has made use of the following words : “ If he brings an injunction against me as a private individual, I shall sell out to the first purchaser, and shall continue to fight if the boat has to pass through the hands of all the people in the city. In this way I think we shall keep him very busy in bringing injunctions against us.”

In answer to this, Mr. Pendleton, in his affidavit, denies that he has declared, as is stated in the moving affidavits, his intention, publicly or otherwise, of evading the injunction in this action, or either of them, or which may be commenced, or that he has any such intention.

When the allegation and the denial are placed in juxtaposition, it requires no comment to show that there is a failure to make that clear, full, and unevasive denial of the words, or words to the effect of those charged.

Among the ancient grants from the crown to the plaintiffs, none was more full and complete than that of the ferry franchises, rights, and fees, from Hew York Island to points on the shores round about. Hedged in by constitutional and legislative restrictions, and its possession retained against contestants, who urged all that research, learning and matchless ingenuity could accomplish to get possession of it, this grant yet remains still one of the most valuable assets of the city, and constitutes the only means by which the city collects any compensation from thousands for the protection of whose persons and property she incurs heavy annual expenditures.

At the same time at which this appeal was argued, the appeal from the order continuing the injunction was also argued, and has, by the concurrence of the same judges, been affirmed, thus establishing the right of the city to the ferry franchise.

But the present appeal does not involve that question, but simply whether the appellants have violated the injunction orders of the court in using and interfering with such right. It is apparent that if by pretended sales of the ferry boats to persons who have not been or can not be served with process, and then keeping them running on the ferry routes, the effect of the injunctions can be avoided, that it is simply a mode of unlawfully seizing upon and using the public property. Justice should be slow to give effect to a wrong, and when that wrong is sought to be accomplished by such a coarse of proceedings as is here shown on the appellants part there must be some remedy.

The occupation of the plaintiff’s wharf at the foot of Whitehall Street after May 21, was a violation of the order of that date, and it is impossible, after considering the proofs, to come to any other conclusion than that the sale of the ferry boat made June 16 was made after notice of the decision granting the injunction, and that it was made in bad faith, and for the purpose of evading the injunction of June 16, and of continuing the running of the ferry, and that the further sale of June 19 was merely a part of the same scheme.

These ingenious and plausible devices resorted to by the appellants, to still retain and use the plaintiff’s property notwithstanding the injunction orders of the court, serve only as indications and proofs of their willful intention to violate them. Public property, as well as private, is entitled to the protection of the law, and can not be wantonly invaded and seized, nor can the arm of the law be made powerless, by a reckless disobedience or fraudulent evasions of the orders of the court. If the doctrine of the appellants was to prevail, there would be a speedy end of property.

But the latter take the position that under any circumstances the plaintiffs are not entitled to an attachment against them, because the proceedings are irregular, as interrogatories were, not filed before the final adjudication upon the alleged contempt. In support of this, the case of Pitt v. Davison (37 Barb. 98) is cited, and if it had not been called in question, it would have gone far to establish the appellants’ claim. But when this case reached the court of appeals (reported in 40 N. Y. 235), it was reversed, and the court held that where the proceeding is by order to show cause, as in the present case, no interrogatories need be filed to enable the party to purge himself of the contempt alleged. The party charged has an opportunty to make his defense by affidavits.

The objection that the last injunction order was not served in such a way as would justify the proceedings by attachment is without force, as the papers show that certified copies of it were served upon both the attorney and Mr. Pendleton. Even parties simply hearing that an order for an injunction has been granted, and disregarding it, can be adjudged guilty of contempt (Hall v. Thomas, 3 Edw's. Chy. 236 ; People ex rel. Morrison v. Brown, 4 Paige, 405; Osborne v Tannent, 14 Vesey, 136).

Heither is the objection, that if there has been any breach of the injunction or any contempt, it has been waived, tenable. The proofs fail to show any waiver, and the case cited by the appellants (Anon. 15 Vesey, 174), is not analogous to the present case, and if it was it would not vary the procedure directed by the Code.

There appears to be no just reason why the orders appealed from, imposing fines and imprisonment for the violation of the injunction should not be affirmed with costs.

Monell, Oh. J., concurred.  