
    Socialistic Co-operative Publishing Association, Respondent, v. Henry Kuhn and Others, Appellants, Impleaded with Others.
    (No. 1.)
    
      Contempt of court —- a fine of §250, in addition to costs, may be imposed as a punishment on each offender.
    
    The court majL under section 226Í4 of the Code of Civil Procedure, as a punishment for disobedience to an injunction order, and not as compensation to the plaintiff for damages sustained therebj', impose upon each of the defendants who have willfully disobeyed such order a fine of §250, in additioh to the plaintiff’s costs and expenses.
    
      ' Appeal by -the defendants, Henry Kuhn and others, from an .order of the .Supreme,Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 23d day of March, 1900, adjudging .them guilty of a contempt of court, and imposing a fine therefor.
    
      Benjamin Patterson, for the appellants.
    
      Simon Sultan, for the respondent.
   McLaughlin, J.:

This-action was brp,ugh-t to procure a judgment perpetually .enjoining and restraining the defendants from publishing or circulating a newspaper under the name of The People.

The complaint alleged that at the commencement of the action the plaintiff was, and for a long time prior thereto it had been, publishing a newspaper under the name of The People / that the defendants were publishing and circulating a newspaper under -the same name, and that, -unless they were restrained, the plaintiff would sustain great and irreparable injury. The answer admitted that,

. under the authority of the national executive committee of the Socialistic Labor party, the defendants had printed and circulated a newspaper under the'name of The People, and alleged that they intended to continue to do so. Upon the pleadings, .affidavits and other papers an order was made enjoining and restraining -the defendants, during the pendency of the action,' from printing or publishing a paper under the name of The People, and the appellants herein having failed to obey this order, they and each of them were, on plaintiff’s motion, adjudged guilty of a contempt of court, for which a fine of $250 was imposed upon each. The order adjudging them guilty of contempt and imposing the fine also adjudged that their acts, constituting such contempt, were calculated to and did defeat, impair, impede and prejudice the rights and remedies of the plaintiff. It is from this order that this appeal is taken.

A most casual consideration-of the record is sufficient to show that the defendants and each of them upon whom a fine was imposed, willfully disobe'yed the order of the court, and in defiance of its mandate continued to publish the paper under the name of The People. Each of them was clearly guilty of a contempt of court. Section 2281 of the- Code of Civil Procedure provides that, in a proceeding to punish for contempt, if it be determined that the accused has committed the offense charged, and that it was calculated to or actually did defeat, impair, impede or prejudice the rights of remedies of the party to an action or special proceeding, the court, judge or referee must make a final order accordingly, and direct that he be .punished by fine or imprisonment, or both, as the nature of the case requires, while section 2284 provides that if an actual loss or injury has been produced to a party to an action or special proceeding, by reason of the misconduct proved against the offender—■ and the case is not one where it is specially prescribed by law that an action may be maintained to recover damages for loss or injury — a fine sufficient to indemnify the aggrieved party must be imposed upon the offender, and collected and paid over to the aggrieved party, under the direction of the court; and if it is not shown that such an actual loss or injury has been produced, á fine must be imposed not exceeding the amount of the complainant’s costs and expenses and $250 in addition thereto, to be collected and paid in like manner.

The appellants’ counsel insists that, under section 2284, the aggregate amount of fine imposed upon all of the defendants cannot exceed the actual loss or injury sustained by the plaintiff by reason of the violation of the injunction, and where such actual loss is not shown, that then the aggregate amount of fine 'imposed on all of the defendants cannot exceed the amount of the complainant’s costs and expenses and $250 in addition thereto; that in the order appealed from the plaintiff failed to establish the actual loss sustained, and, therefore, the court could not impose a fine upon the defendants, the aggregate amount of which exceeded the amount of the complainant’s costs and expenses and $250 in' addition thereto.

We do not think that the record before us, or a proper construction of section 2284, sustains this contention! It appears from the affidavit-of the .president of the plaintiff — which fact is not denied by the defendants or any of them — that the defendants have materially interfered with the plaintiff’s business; that since the violation of the injunction order the circulation of the newspaper, The People, published by the plaintiff, has fallen off to the amount of about 3,000 subscribers, each of .whom paid an annual subscription price of 50 cents, mating an aggregate sum of $1J500 in decreased subscriptions.

If the fines imposed were for the purpose of indemnifying the plaintiff against the damages sustained, it does not necessarily follow, because the order does not determine the amount of the damages, that it is, therefore, erroneous, since there is evidence before the court from-which it can see that the plaintiff has suffered damage in excess of the amount of the fines. (Clark v. Bininger, 75 N. Y. 344.) Where, however, a fine is imposed for the purpose of indemnifying the aggrieved party, under section 2284 of the Code, that fine fixes the amount of the recovery, and it should be imposed in one sum and collected as any other sum by which a party is compensated for , damages sustained. This is apparent from the fact that the payment and acceptance of ■ such fine is made, by the section, a bar to an action to recover damages for loss or injury ; in other words, in that case the fine imposed is by way of compensation, to the injured party, and not as a punishment for a contempt of court. Here it is apparent that .the fine was imposed, not as compensation to the plaintiff for the damage sustained by it, but as a punishment to the defendants for disobeying the order, and the court had the power, under section 2284, to impose the fine which it did upon each one. The contempt of each one was a separate act, for which he alone was responsible. If a separate proceeding had been instituted against each of these-defendants, to punish for contempt, and each had been found guilty, no one would seriously contend but what the court would have the power to impose a-fine upon each to the extent of $250, and the fact that only one proceeding was instituted does not and cannot change the legal effect of this section. The fact is, each of. these defendants had willfully violated an order of the court; each was guilty of a contempt of court, and each was punished by a fine' for that contempt. In imposing the fine,, the learned trial justice sitting at Special Term did not exceed the authority given to him by statute.

It follows that the order appealed from must be affirmed, with ten dollars costs and disbursements.

Patterson, Rumsby, Ingraham and Hatch, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  