
    The Typothetæ of the City of New York, Appellant, v. Typographical Union No. 6 and Others, Impleaded with Patrick H. McCormick, Individually and as President of Said Union, and Vincent J. Costello, Individually and as Organizer of Said Union, Respondents. In the Matter of the Punishment of Typographical Union No. 6 and Others for Criminal Contempt.
    First Department,
    May 6, 1910.
    Contempt — affirmance of order by Court of Appeals—power of court to stay punishment.
    After an affirmance by the Court of Appeals of an order adjudging defendants in criminal contempt for the willful violation of an injunction, the Special Term, on a petition for clemency, ordered that, upon the payment of the fine imposed, the direction for imprisonment be perpetually stayed.
    
      Held (per Dowling, J., and Ingraham, P. J.), that the court had power to allow the defendants to purge themselves of contempt even though the order adjudging them in contempt had been affirmed by the appellate court;
    (Per Scott, J.): That the order staying the imprisonment should be affirmed on the ground that the appellant was not a party aggrieved by the order appealed from.
    McLaughlin and Clarke, JJ., dissented, with opinion.
    Appeal by the plaintiff, The Typothetíe of the ■ City of New York, from so much of an order of the Supreme Court, made at the New York Special .Term and entered in the office of the-clerk of the county of New York on the 5th day of April, 1910, upon a remittitur from the Court of Appeals, as grants a perpetual stay of sentence. (See 66 Misc. Rep. 484.)
    
      Robert C. Beatty, for the appellant.
    
      Alfred J. Talley, for the respondents.
   Dowling, J.:

This is a proceeding originally brought to punish the defendants for criminal contempt for the willful violation of an injunction order. After a trial before a referee the court adjudged certain of the defendants guilty, among them Patrick H. McCormick and Vincent J, Costello, who were directed to pay tines of $250 each and to be imprisoned for twenty days. Appeals to this court and to the Court of Appeals .resulted in the affirmance of said order. (132 App. Div. 921; 196 N. Y. 571.)' The remittitur from the Court of Appeals was filed, and the respondents filed a petition with the court for the suspension of the sentence of imprisonment, in which they expressed their regrets for the acts adjudged to have been unlawful, averred their good faith and lack of intention to disobey the law, and asked leave to purge themselves of the contempt of which they had been found guilty.. They set forth at length the reasons why the .clemency of the court should be extended to them. These appeared so satisfactory that the order appealed from was made by the justice who originally adjudged them "in contempt wherein upon the .payment of their fines he directed that the issue of process for the imprisonment of the respondents be stayed.. The questions presented here are whether the court had jurisdiction to make the order sought to be reviewed, and, if so, whether its discretion was properly exercised. At the outset it may be said that this is not an attempt to add any new and independent directions to the judgment of the Court of Appeals, nor to take anything away therefrom. That court, as well as this, simply determined that upon the facts presented the respondents had been guilty of criminal contempt. The question- of the adequacy or severity of the punishment inflicted was never raised. Now, after a final determination of the issue of whether a contempt was committed, the court which originally made such declaration and which alone had power to punish the offense, in the exercise of its., discretion declares, that .the interests of justice will be best served by compelling the payment of the fine alone, and by staying the imposition of the further penalty. It in no way alters the determination that a' criminal contempt had been committed. It is well settled that no court can punish a contempt of another -court, and that the court whose order or authority is defied alohe has power to punish it or to entertain proceedings- to that end. (Rapalje on Contempt, 15.) After an adjudication one adjudged guilty of contempt will generally be- allowed to purge the contempt by performing the act required, or undoing or reversing the acts constituting the contempt, or,.where the act has caused injury to a party to the suit, by making reparation to the injured party. (9 Cyc. 59; People ex rel. Baldwim, v. Miller, 9 Misc. Rep. 1; People ex rel. Taylor v. Seaman, 8 id. 152.) Even where one is imprisoned for contempt, the court may at any time, in its discretion, either on its motion or. upon proper application, inquire into the question of the ability of the offender to obey the order, and if satisfied of the inability of the offender to comply he may be discharged. (9 Cyc. 60; Valentine & Co. v. Mandel, 11 N. Y. Supp. 718; Ryer v. Ryer, 67 Iiow. Pr. 369; and see Judiciary Law [Consol. Laws, chap. 30; Laws of 1909, chap. 35], § 775.) This application, therefore, is in effect one to be allowed to purge themselves of their contempt by respondents, is addressed to the discretion of the court which alone had power to punish for the contempt and to allow its being purged, and whose discretion and authority were in nowise destroyed or 'abridged by the affirmance upon appeal of its own determination. Having been satisfied that it was proper that the full enforcement of its own mandate should be stayed, and no valid reason appearing why its discretion should not be exercised to that end, the court was within its rights in so ordering.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Ingraham, P. J., concurred; McLaughlin and Clarke,' JJ., dissented.

Scott, J.:

I concur on the ground that the appellant is not, in a legal sense, a party aggrieved by the order appealed from.

McLaughlin, J.

(dissenting):

The court at Special Term, of course, had discretion as to the punishment to be imposed upon the respondents for their willful disobedience of the court’s order, but that discretion was exercised Avhen the original order was made declaring them to be in contempt and imposing the fine and imprisonment. They appealed from the order to this court, and it was affirmed, and then they appealed to the Court of Appeals, where the détermination of this court was affirmed. (See 132 App. Div. 921; 196 N. Y. 571.) After the appeal had been taken and. the order affirmed by the -Appellate Division and the Court of Appeals, the power of the Special Term over or concerning it was gone. When the remittitur of the Court of Appeals came down, the Special Term could do only one thing, viz., make the judgment of the Court of Appeals the judgment of the'Supreme Court, to the end that the order might be “ enforced-according to law.” (Code Civ. Proc. § 194.) The Special Térm had no discretion. It was bound to obey the directions contained in the remittitur. and enforce the order in the manner and to the extent in which it had been affirmed by the Court of Appeals. (Matter of Protestant Episcopal Public School, 86 N. Y. 396; Wilkins v. Earle, 46 id. 358; Matter of Hopkins, 95 App. Div. 57; Zapf v. Carter, 90 id. 407; Parish v. Parish, 87 id. 430; Matter of Griffin, 98 N. C. 225.)

In the case last cited it was expressly held that after an order fining the defendant for contempt had been affirmed on appeal the court below had no.power to remit the fine.

This must be so if the rights of parties are ever to be settled by an adjudication of the court. (Meldon v. Devlin, 39 App. Div. 581.) The practice here adopted would practically destroy the efficiency of an appellate court. If the Special Term had authority to modify or stay the enforcement of the order in any particular, then it could have remitted both the fine and the imprisonment, and I do no! believe that an order of the court of last resort can be.thus nullified or destroyed. The appeals determined that the respondents were not only guilty of contempt,'but that the punishment therefor had been properly and legally imposed. It might just as well be claimed that because in an equitable action costs aré awarded in the discretion of the court, the trial court, after a judgment including costs has been affirmed by the. Court of Appeals,’ can perpetually stay the enforcement of the judgment to the extent of such costs.

This is not a case of civil contempt and for that reason it seems to me the reasoning in the prevailing opinion, based upon the theory that a party may purge himself of contempt, is unsound. Besides, we have just decided, in Schmohl v. Phillips (138 App. Div. 279) that the provisions of section 775 of the Judiciary Lawy(Consol. Laws, chap. 30 ; Laws of 1909, chap. 35) cannot be invoked to prevent imprisonment for contempt, but' only to relieve a party in prison. The extent of the punishment, in view of' all the facts and circumstances, was fully considered by the Special Term when the original order was made, and that order having been affirmed by the Court of Appeals, I am of the opinion that the Special Term had no power or authority to stay the enforcement of the order as it was remitted by the Court of Appeals.

For the foregoing reasons I am unable to concur in the opinion of .Mr. Justice Dowling. I think the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to remit the imprisonment denied, with ten dollars costs.

Olaeke, J., concurred.

Order affirmed, with ten dollars costs and disbursements.  