
    Mutual Milk and Cream Company, Respondent, v. Dietrich Tietjen, Appellant.
    
      Contempt of an injunction restraining a party “either as principal or agent',” from becoming interested in any milk business — effect of his driving a milk wagon for another and assisting in the delivery of milk — if any, it is a technical violation of the order, from which damage must be shown — what is not a criminal contempt.
    
    Certain milk dealers doing business in the city of New York sold their business to a corporation and covenanted “not to enter, upon their own account, in any milk business in the territory or district, known as the ‘ Greater New York,’ for a term of twenty years from date hereof, and that they, nor either of them, will engage in the said business, either directly or indirectly, or he in any manner interested in any other milk business excepting that of the corporation to be formed as hereinabove stated.” Thereafter the corporation brought an action against one of the vendors to restrain him from violating such covenant and obtained an injunction pendente Ute restraining him from “in any manner entering into competition with the plaintiff * * * or engaging in the milk business, directly or indirectly, in the district or territory of Greater New York, either as principal or agent, or in any form or manner doing or becoming interested, directly or indirectly, in any milk business other than that of” the plaintiff, and “ from in any manner, impairing, injuring or destroying the good will transferred from said defendant” to the plaintiff, and from either “personally or by agent, servant or employee soliciting or interfering with any of the customers transferred from this defendant to the plaintiff.” Subsequently the corporation made a motion to have the defendant adjudged guilty of contempt for violating such order. Upon such motion it was proved that the defendant was engaged in driving a milk wagon for his brother and that he occasionally delivered, or assisted in delivering, milk from the wagon to his brother’s customers.
    It also appeared that the injunction pendente lite proposed by the plaintiff would have enjoined the defendant “either as principal, agent or employee,” and that the court adopted the order proposed by the defendant which omitted the word “ employee,” and that, although the attention of the court was specifically drawn to the matter upon a motion to resettle the order, the court refused to insert that word therein.
    It further appeared that the defendant’s attorney had advised the defendant that he was not restrained from working for his brother as an ordinary employee, provided he did not solicit trade.
    Upon an appeal from an order adjudging the defendant guilty of contempt and fining him fifty dollars and costs of the motion to be paid to the plaintiff’s attorney, it was
    
      Held, that upon the facts it was doubtful whether the defendant had violated the injunction order, but that, even if the injunction order should be construed as enjoining services of the character rendered by the defendant to his brother, the defendant’s conduct constituted only a technical contempt for which he might be fined the amount of damage shown to have been sustained by the plaintiff, together with costs;
    That as no damages had been shown, and as the order appealed from did not definitely adjudicate the facts constituting the violation, nor contain a recital that the acts of the defendant were calculated to or did defeat, impair, impede or prejudice the rights or remedies of the plaintiff, the order could not be sustained as an adjudication of a civil contempt;
    That the order could not be sustained as an adjudication of a criminal contempt, under sections 8 and 9 of the Code of Civil Procedure, for the reason that it required the payment of both costs and fine to the plaintiff’s attorney instead of to the public, and for the further reason that the facts would not justify a finding that the violation of the injunction order was willful.
    
      Appeal by the defendant, Dietrich Tietjeu, from an order of the Supreme Court, made at the Few York Special Term, bearing date the 3d day of March, 1902, and entered in saio. clerk’s office, adjudging the defendant guilty of a contempt of court and fining him fifty dollars and the costs of the motion, to be paid to the plaintiff’s attorney within twenty days, and in default thereof providing for his commitment to the county jail in the county of Few York.
    
      J. IIo7ner Hildreth, for the appellant.
    
      Felix H Levy, for the respondent.
   Laughlin, J.:

The action is brought to enjoin the appellant from entering upon or engaging in the milk business in the city of Few York, either directly or indirectly, or becoming in any manner interested in any milk business other than that of the respondent. On the 2d day of January, 1898, the defendant was the owner of a milk business and route in said city, and he, together with many other like owners, on that day made an agreement in writing with certain trustees for a sale and transfer of the milk business to them. The agreement recites that the parties contemplated forming a corporation. The vendors covenanted that “ from and after the time that the said businesses are respectively transferred to the said corporation, the said parties hereto agree not to enter, upon their own account, in any milk business in the territory or district, known as the ‘ Greater Few York,’ for a term of twenty years from date hereof, and that they, nor either of them, will engage in the said business, either directly or indirectly, or be in any manner interested in any other milk business excepting that of the corporation to be formed as hereinabove stated.”

On the 14th day of January, 1902, the respondent obtained an injunction order restraining the appellant,pendente lite, from “in any manner entering into competition with the plaintiff "" * * or engaging in the milk business, directly or indirectly, in the district' or territory of Greater Few York, either as principal or agent, or in any form or manner doing or becoming interested directly or indirectly in any milk business other than that of ” the plaintiff, and “ from in any manner injuring, impairing or destroying the good will transferred from said defendant ” to the plaintiff, and from either personally or by agent, servant or employee soliciting or interfering with any of the customers transferred from this defendant to the plaintiff.”

In the order from which the appeal is taken it is “ ordered, adjudged and determined, that the defendant Dietrich Tietjen is guilty of a contempt of this court in having willfully disobeyed the injunction order * * * in that he engaged in the milk business, .1directly or indirectly in the district or territory of Greater New York, and that he became interested directly or indirectly in a milk business other than that of the Mutual Milk and Cream Company, and that he either on his own behalf or on behalf of some other person solicited amd interfered with the plaintiff’s customers.” It appears that the appellant’s brother is the owner and proprietor of a milk route in the city of New York. The moving affidavits show that on various occasions, subsequent to the sale of his milk business under said agreement, the appellant has driven one of his brother’s milk wagons from which milk has been delivered by a helper to parties who were formerly customers of the respondent, and that on one occasion the appellant personally so delivered milk from the wagon. Several of the affiants from these facts draw the inference and give it as their belief that the appellant is interested in the milk business and is soliciting customers therefor, but no other facts are stated.

The appellant’s affidavit shows that he is employed by his brother as a driver of a milk wagon at a salary of ten dollars per week, and that he is in no manner interested in the business and has not solicited any customers for his brother. The affidavit of the brother is to the same effect, and he explains how he obtained the customers who were formerly patrons of the respondent. Other affidavits are also presented which show that the brother obtained these customers without the intervention of the appellant.

The belief of the affiants that the appellant is interested or engaged in the milk business or has solicited customers for his brother is no proof of the fact. We have, therefore, merely proof that the appellant is acting as driver for his brother in the latter’s milk business, and occasionally delivers or assists in delivering milk from the wagon to his brother’s customers.

It appears that the proposed injunction order originally presented for settlement by the respondent would have enjoined the appellant, “ either as principal, agent or employee,” and that the order proposed by the appellant, which was adopted by the court, omitted the word “ employee.” The respondent then made a motion to-resettle the order by inserting the word “ employee ” and in other respects. The court resettled the order, modifying it in some particulars, b.ut adhered to the omission of the word “ employee.” It is shown that appellant’s counsel specifically drew the attention of the court to his objection to the word employee ” being incorporated, which was that it would enjoin the appellant from earning; his living as an ordinary employee in the milk business of another.. After the order was resettled the appellant was then advised by his counsel that he was not restrained from working for his brother in this capacity, provided he did not solicit trade.

In these circumstances, it is extremely doubtful whether the-appellant violated the injunction order at all. But even if the injunction order should be construed as enjoining services such as he has rendered to his brother, at most it was only a technical contempt for which he might be fined the amount of damages shown to have been sustained by the respondent, together with costs.. (Power v. Village of Athens, 19 Hun, 165; Moffat v. Herman,. 116 N. Y. 131; Dejonge v. Brenneman, 23 Hun, 332.) This,, however, would require an adjudication upon competent proof, not. only of the facts unequivocally stated which constituted the violation of the injunction order, hut that such violation “ was calculated to, or actually did, defeat, impair, impede or prejudice the. rights or remedies ” of the respondent. (Code Civ. Proc. §§ 14,. 2266, 2281, 2284; Socialistic Co-op. Pub. Assn. v. Kuhn, No. 2, 51 App. Div. 583; Dailey v. Fenton, 47 id. 418 ; Mahon v. Mahon,. 50 N. Y. Super. Ct. 92; Cronin v. Crooks, 76 Hun, 123; 143N. Y. 352.)

The order neither adjudicates definitely the facts constituting the. violation, nor does it contain even a recital that the acts of the appellant were calculated to, or did, defeat, impair, impede or prejudice the rights or remedies of the respondent, and no damages have been shown.

JSTor can the order be sustained as an adjudication of a criminal. contempt under sections 8 and 9 of the Code of Civil Procedure. In such case the punishment is imposed to vindicate the dignity of the court and in the interest of public justice, and not for the benefit of the party. The fine belongs to the public and not to the moving party, and costs are not allowed. (Boon v. McGucken, 67 Hun, 251; People ex rel. New York Soc. P. C. C. v. Gilmore, 88 N. Y. 628; People ex rel. Munsell v. Court of Oyer & Terminer, 101 id. 245, 248.) The order, on the contrary, requires the payment of both costs and fine to the respondent’s attorney. Furthermore, the facts would not justify a finding that the violation of the injunction order was willful, which is essential to authorize punishment as for a criminal contempt. It may well be that the appellant acted in entire good faith. It appears that the matter was substantially brought to the attention of the judge who made the order, and, in view of the elimination of the word employee ” from the order proposed by the respondent, the appellant should be given the benefit of the doubt; and it should not be inferred against him, as the basis of punishment for a criminal contempt, that he willfully violated the order, even assuming that it did enjoin the acts which he has performed. (Erie Ry. Co. v. Ramsey, 45 N. Y. 641; People ex rel. Kelly v. Aitken, 19 Hun, 329; Billings v. Carver, 54 Barb. 40.)

The observations we have made with reference to the requirement of an adjudication of the facts in the order for the punishment of a civil contempt apply equally here.

The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Van Brunt, P. J., Patterson and McLaughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  