
    Rochester, Hornellsville and Lackawanna Railroad Company, Resp’t v. The New York, Lake Erie and Western Railroad Company, Appl’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 14, 1888.)
    
    1. Practice—Injunction order—Service on managing agent — Who SUCH AGENT WITHIN CODE ClVIL PROCEDURE, § 431.
    An injunction pendente lite was served while the acts in question were in progress upon the defendant’s division superintendent of that division of the defendant’s road which included the locus of the alleged violation of the order of the court. All the servants and agents of the company-located within that division were subject to his orders. All the servants of the company engaged in the prosecution of the work in question were acting under his orders. He was the officer who_ received from the chief authorities of the road all general orders pertaining to the management and operation of his division. Held, that said division superintendent was the appropriate managing agent upon whom to make service of the injunction order.
    2. Same—What notice sufficient to make continuance of act in-joined CONTEMPT OF COURT.
    It appeared that the general officers of the defendant company were fully advised of the issuance of this injunction and of its purpose and effect before noon on Saturday and that the acts forbidden continued through the forenoon on Monday. Held, that the continuance of the forbidden acts after such notice of the granting of the injunction was a contempt of court equally as if there had been strict service of the injunction order.
    Appeal from an order of special term adjudging the defendant in contempt,' and from an order amending the same.
    
      
      James H. Stevens, Jr., for app’lt; F. S. Smith, for -resp’t.
   Dwight, J.

—The contempt adjudged was in the violation of an injunction pendente lite. That the order of injunction was duly granted by the- county judge of Steuben county; that it was served, with the summons and complaint in the action, upon several officers of the defendant, and that acts were done by the defendant’s servants and agents, which are forbidden by the order, is not in dispute. The only question made by the defendant relates to the time of the service of the order; had a sufficient service been made, to charge the defendant, before the commission of the acts complained of.

Upon that question the proofs, contained in the affidavits used on the motion, show that the work which constituted the alleged violation of the injunction was commenced on Saturday, the twenty-first of August, and continued on the following Monday; and that the service of the injunction-order was made, at various times of those days, on the station-master at Hornellsville, on the conductor of a gravel train which was engaged in the work, on the “section boss” of the section, the “road-master” of the division and the division superintendent of the division within the limits of which the work was done; and, finally, on the first vice-president of the defendant, in the city of New York.

It is also alleged in the moving affidavits, and not denied by the opposing affidavits, ‘ ‘ that the general officers of the defendant’s company in New York were fully advised, before noon of the twenty7first of August, that the injunction had been issued, of the nature of the prohibition contained therein and of the fact that the same had been served on some of the officers or agents of the company.”

It is not denied, that the acts complained of, or some of them, were done after the service of the papers, including the injunction order, on all the persons who were served, as above stated (with the exception of the vice-president of the company), and after noon of the 21st of August.

Upon this state of the proofs, disregarding facts which are, nevertheless, in controversy, it would seem that we may limit our inquiry to the two questions:

1st. Whether either of the persons served before the commission of any of the prohibited acts, was a “managing agent ” of the defendant within the meaning of the statute which prescribes the mode of service on corporations (Code of Civil Pro., § 431), and, 2d. Whether, in the absence of strict service of the injunction order, the defendant was, nevertheless, amenable to its commands, and may be punished for its violation, because of the fact that the chief officers of the company had knowledge of the issuance of the order and of what was commanded and forbidden thereby.

Both of these questions, we think, must be so answered as to uphold the action of the special term in making the order appealed from.

Among the officers of the defendant, served while the acts in question were in progress, was the division superintendant of that division of the defendant’s road which included the locus of the alleged violation of the order of the court. All the servants and agents of the company located within that division were subject to his orders. All the servants of the company engaged in the promotion of the work in question, were acting under his orders. The work was done under his personal supervision and direction. He was the managing agent of the defendant, in respect to all matters local to the important division of which he was superintendent, and in respect to the acts sought tobe enjoined. He was the officer who received from the chief authorities of the road all general orders pertaining to the management and operation of his division, and he must have been the officer chiefly relied upon to transmit to those authorities all information respecting its condition and requirements. He was the officer whose position, rank and duties made it, in the language of the opinion in Palmer v. The Penn. Co. (35 Hun, 369; 99 N. Y., 679), reasonably certain that the defendant would be apprised, of the service made.” As was said in that case the rule of the statute does not require that the agent should have charge of the whole business of the corporation, for such agencies seldom or never exist.

So, in the case of a railroad company, the manageinent of an agent need not extend throughout the whole line of the road, for in that case there would be but one managing agent. We think that, in this case, the division superintendent, within whose division and under whose direction-the work was being done which was sought to be enjoined, was the appropriate managing agent upon whom to make service of the injunction order.

But we think the answer to the second question propounded above must be equally decisive in favor of sustaining the order appealed from.

It is established, for the purpose of this review, that the general officers of the company were fully advised of the issuance of this injunction, and of its purpose and effect, before noon of Saturday, and that the acts forbidden continued through the afternoon of Saturday, and at least a portion of the forenoon of Monday.

The authorities are numerous and decisive to the effect that the commission or continuance of the forbidden acts, after such notice of the granting of the injunction, was a contempt of court equally as if there had been strict service of the injunction order. People v. Brower, 4 Paige, 405; Livingston v. Swift, 23 How. Pr., 1; Abell v. N. Y., L. and W. R. R. Co., 18 Weekly Dig., 554; affirmed 100 N. Y., 634.

We think the proofs support, the adjudication of contempt against the defendant, and justify the order made in the premises.

The second order was favorable to the defendant, in, substituting merely motion costs for the costs and expenses of the proceeding. The appeal from the order of amendment seems to have been taken for greater caution, to bring up the «whole order as amended. .

Both orders should be affirmed, with costs of one appeal. Orders affirmed, with ten dollars costs and disbursements. . ,

Barker, P. J., Haight and Bradley, JJ., concur.  