
    Emily H. Hathorn and Frank H. Hathorn, Respondents, v. Natural Carbonic Gas Company, Appellant.
    Third Department,
    March 9, 1910.
    Injunction — contempt— defenses—undertaking—waiver of defects.
    One charged with contempt for disobeying an injunction cannot defend on the ground that the court erred in granting it.
    That the original order was modified on appeal is no excuse for failure to obey it, if it was affirmed in its essential parts.
    Where an- undertaking on injunction is for the required amount and the surety has been duly approved by the court, a defendant who does not except to the surety or move to set aside the undertaking, but who, on the contrary, recognizes and acknowledges it as sufficient in subsequent proceedings and expressly agrees that it is the undertaking required by the order, waives any defect therein and is estopped from asserting its invalidity after the order under which it was given has been affirmed by the Court" of Appeals.
    Smith, P. J. dissented.
    Appeal by the defendant, the Natural Carbonic Gas Company, from an order of the Supreme Court, made at the Warren Special Term and entered in the office of the clerk of the county of Saratoga on the 25tli day of June, 1909, adjudging the defendant guilty of contempt of court and punishing it therefor.
    
      Guthrie B. Plante and Alton B. Parker, for the appellant-.
    
      Wash Poekwood and Charles C. Lester, for the respondents.
   Sewell, J.:

We are of the opinion that the Special Term was fully justified by the evidence in finding as a matter of fact that the defendant willfully disobeyed the order of the 8th day of August, 1908, in that it did ..continuously between the 2d and 7th days of April, 1909, draw by pumping and by artificial" means from numerous wells.upon its lands, made by drilling into rock, that class of mineral water holding in solution mineral salts and an excess of carbonic acid gas, and did thereby produce an unnatural flow of natural carbonic acid'gas, for the purpose of collecting, liquefying^and vending such gas as a commodity. ■ The proof is ample that the defendant has done the very thing which the issuance of the injunction was intended to prevent, and has thus defeated the will of the court.

It is too late to say that the injunction order exceeded the office of an injunction, or that the court erred in granting it, after it has-been affirmed in a direct proceeding to review it by the Appellate Division, and finally by the .Court of Appeals. (128 App. Div. 33 ; 194 N. Y. 326.) A party proceeded against for disobedience to an order or, judgment is never allowed to allege as a defense for his misconduct that the court erred in its judgment.” (People v. Sturtevant, 9 N. Y. 266.) It was a valid order, and was entitled to the obedience of the defendant. The fact that the original order of the Special Term was modified upon the appeal to the Appellate Division is no excuse for failing to obey its commands. As was said in People ex rel. Platt v. Rice (144 N. Y. 262): “ We think this a frivolous objection. It would lead, to the irrational conclusion that because a decision in the form of an order or a judgment had been appealed from and.,brought into this court for review, it-became of no force, if modified in some parts, though affirmed in essential parts. The power of the court below to enforce its decisions may be suspended, as the result of an appeal; but its decision loses none of its strength pending the appeal; and, if modifications, are made of its terms, to the extent that it is sustained, it is the same order, to the validity and force of which has been added the sanction . of this court.”

We also think that the court was justified in' holding, that .the undertaking gave force and effect to'the injunction. It was executed and filed by the plaintiffs. It was for the required amount, and the surety was approved by one of the justices of this court. But whether or not it was in strict compliance with the order, it seems.clear that the defendant waived any defect, and is estopped ' from asserting its invalidity, or'that it .did.no.t comply, with the provisions of the statute or order under wliich it was given. Had the defendant intended in good faith to question its sufficiency, it should have excepted to the surety or moved to set the undertaking aside, in wliich case the plaintiff could have been allowed to amend or file a new undertaking. It did neither. On the contrary, it recognized and acknowledged it as sufficient in subsequent proceedings, and did not attempt to disregard.it until after the order under which it was given was affirmed by the Court of Appeals.

There can be but little doubt that these acts of the defendant must be regarded as tantamount to an acceptance of the undertaking as a compliance with the order, arid as sufficient to accomplish the purpose for which it was given. If not, we have the evidence of an express agreement that it should be the undertaking required by the in junction order, which is of itself sufficient to estop the defendant from denying that the order was not complied with or that the undertaking was not a valid or proper security.

I. think that the decision of the learned justice of Special Term, adjudging the defendant guilty of contempt and directing punishment should be affirmed, with costs.

All concurred, except Smith, P. J., who dissented.

Order affirmed, with costs.  