
    Lorenzo Boon et al., Resp'ts, v. Daniel McGucken et al., App'lts
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed February 23, 1893.)
    
    Contempt—Order.
    An. order made at special term finding defendants guilty of contempt in violating an injunction contained no such adjudication and determination as are provided for by §§ 14, 2266 and 2281 of the Code. Held, that the order should not be sustained.
    Appeal from an order made at the Onondaga special term on the 17th day of September, 1892, adjudging certain of the defendants guilty of contempt, and fining them $200 apiece and $15 costs each, and requiring the fines to be paid to the clerk of Oneida county, and the costs and disbursements to be paid to the plaintiffs. An injunction order was granted on the 3d day of June, 1892, by a justice of this court; a motion was made to vacate and set aside said order, which was denied. It was alleged that after the granting of the injunction and after the denial of the motion to vacate the same, that on the 18th of July, 1892, the common council adopted certain resolutions for which the eight defendants, as members of the common council voted. It appeared that the resolutions were vetoed by the mayor, and that “ on the 22d day of August a special meeting of the council was duly held to consider and act upon said veto. At this meeting all the aldermen were present except alderman' Beatty, and said resolution or ordinance for paving South street, Sunset avenue and Jewett place and Jewett street and Plant street, were passed over said veto by a vote of eight aldermen voting in the affirmative, and three in the negative. Those voting in the affirmative, were the defendants Boyce, Clark, Corcoran, Dowd, Roberts, Welch, Tessy and McGrucken.” It was claimed at the special term that the order restrained the members of the common council of the city of Utica from making any contracts with any person or corporation for the paving of any of the streets mentioned, or any part or either of them, “ when the concrete base will be laid the wearing surface, or pavement proper, the matrix or binding material of which is a cement prepared with the best quality of refined Trinidad asphaltum obtained from the Pitch lake in the Island of Trinidad. And from making any contract affecting said streets or any of them requiring asphalt pavement thereon to be of asphalt from any particular place, and not obtained in the open market by all persons for the same price.”
    It is said in the opinion delivered at the special term, viz.: “ As no actual contract in writing has been entered into between the city of Utica and the Warren Scharf Company for paving said streets with asphalt from Pitch Lake in the island of Trinidad, technically, perhaps, there has not in this respect been a violation of the injunction. * * * But there is another prohibitory clause in said order that seems to have been intentionally disobeyed by the defendants complained of, and that is, c and each member of said common council is enjoined from voting to enter into any such contract on the part of the city of Utica, and from jointly or severally participating in concluding or attempting to conclude any such contract until the further order of the court.’ ”
    In the veto message of the mayor, bearing date August 15, 1892, he said: “ The resolution and the subsequent action of the council in the matter of Pitch Lake asphalt appears to me to be a violation of the injunction. Enjoined as I am, as well as the members of the council, I cannot consent to this action and bring the mayor or myself into contempt, I must, for the good name of the city and my personal security, obey the law and respect the order of the court. I, therefore, return the foregoing resolution, also the ordinance based thereon for the paving of South street, as the same appears in the certified minutes of the common council, under the date of July 27, to your honorable body without my approval.
    “ Thomas Wheeler, Mayor."
    
    Proceedings were instituted to punish the defendants for contempt by the plaintiffs obtaining an order August 24, 1892, requiring the defendants to show cause at a special term to be held in September, 1892. -
    
      Matteson & DeAngelis and A. M. Beardsley, for app’lts ;
    
      Charles D. Adams ^ for resp’ts.
   Hardin", P. J.

(1) It seems to be settled by authority that in eases of criminal contempt arising under §§ 8 and 9 of the Code of Civil Procedure, the court has no power to impose costs.

In People ex rel. etc. v. Gilmore, 88 N. Y., 626, it was said, viz.: “A proceeding, however, to punish for such a contempt is a criminal proceeding, and the general term, on reversal of the order of special term, has no authority to impose costs upon the relator.”

In Stubbs v. Ripley, 39 Hun, 627, in considering an alleged criminal contempt, it was held that the court “ did not have power to impose upon the defendant $10.00 costs of the motion.” In delivering the opinion in that case, Daniels, J., said, in considering an alleged criminal contempt, viz.: “ Authority to add these costs has not been given to the court by the section of the Code of Civil Procedure declaratory of the power of the court in the way of imposing punishment.” The case from which the quotation has just been made was decided in the general term of the first department in 1886.

(2) In Brinkley v. Brinkley, 47 N. Y., 40, it was held that contempt proceedings are special proceedings, and that an appeal lies from an order which is absolute in adjudging a person in contempt and prescribing punishment

(3) In People ex rel. Negus v. Dwyer, 90 N. Y., 410, it was held that an injunction order is a mandate, and is, therefore, included in that expression found in the sections of the Code of Civil Procedure relating to contempt. Section 14 of the Code of Civil Procedure.

(4) It has been repeatedly held that a party having knowledge of the existence of an injunction may be punished for violating it. Mayor, etc., of New York v. N. Y. & S. I. Ferry Company, 40 N. Y. Superior Court, 300; S. C., affirmed 64 N. Y., 623; People ex rel. King v. Barnes, 28 St. Rep., 625; Aldinger v. Pugh, 57 Hun, 181; 32 St. Rep., 513; S.C., affirmed 132 N. Y., 407; 44 St. Rep., 566. And it has also been held that a disobedience of an order by a party of which he had knowledge and which had been served on the solicitor, and not himself, may be punished as for a contempt. The People v. Brower, 4 Paige, 405; Koehler v. Farmers & Drovers' National Bank, 17 Civ. Pro., 307; 25 St. Rep., 222. And the same is true, although the acts done in violation were upon the assumption that such acts could be safely done notwithstanding the injunction. Gage v. Denbow, 49 Hun, 42; 17 St. Rep., 515, following R. H. & L. R. R. Co. v. N. Y., L. E. & W. R. R. Co., 48 Hun, 190; 15 St. Rep., 686. It was held, however, in Koehler v. Farmers & Drovers' National Bank, 14 Civ. Pro., 71, “ that unless personal service is made of an injunction order, that wilful and deliberate intent essential to constitute a criminal contempt is wanting.”'

(5.) In Duffus v. Cole, 39 St. Rep., 838, the question was presented to this court as to whether the defendant was properly convicted for violating an order and injunction, and in the course of the opinion delivered it was said: “Again, the defendant was not liable for contempt unless her act might defeat, impair, impede or prejudice the right or remedy of.the plaintiff. We are unable to see how her act in anyway tended to do that. There was no proof of any loss to the plaintiff. 37 Hun, 329; 42 id., 535; 4 St. Rep., 657. We think the order should be reversed."

In Rhodes v. Linderman, 43 St. Rep., 520, the case of Duffus v. Cole was referred to approvingly in an opinion delivered by one of the members of this court.

(6.) It was said in Hawley v. Bennett, 4 Paige, 164, that so far as the rights of the party have been “affected by the breach of the inj unction, it is no defense to the person who has been guilty of violating the same that he did it under the advice of counsel; although, if he has acted in good faith, it may be sufficient to protect him from punishment as for a criminal contempt. The rights of parties must be protected against the wrongful acts of the adverse party, although he may have acted under the advice of counsel.” The same doctrine was approved byFolger, J., in Erie Railway Co. v. Ramsey, 45 N. Y., 654; to the same effect is People v. Compton et al., 1 Duer, 512; affirmed 9 N. Y., 263.

(7.) It is provided in § 14 of the Code of Civil Procedure as follows: “A court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding pending in the court may be defeated, impaired, impeded or prejudiced, in either of the following eases.” Then follows an enumeration of cases in eight subdivisions, and in the fourth subdivision it is provided that such punishment may be applied to a person for committing several enumerated acts “ and for any other unlawful interference with the proceedings therein.” ®

In King v. Barnes, 113 N. Y., 476; 23 St. Rep., 263, it was held that a party w ho had been convicted of contempt for advising and procuring one of the defendants to disobedience of- the judgment on the part of the officers of a corporation “ was a civil contempt within the Code of Civil Procedure, § 14, subdivision 4.” And it was also held, viz.: “Any person who interferes with the process, control or action of the court in a pending litigation, unlawfully and without authority, is guilty of a civil contempt if his act defeats, impairs, impedes or prejudices the rights or remedy of a party to such action or proceeding;” and the punishment of such a party, according to the provisions found in § 2285 of the Code of Civil Procedure, was upheld.

In King v. Flynn, 37 Hun, 329, although the acts of the defendant were unlawful and contumacious, it was held that the case was within the provisions of title 3 of chapter 17 of the Code of Civil Procedure.

In Dejonge v. Brenneman, 23 Hun, 333, it was alleged that an order of injunction was granted restraining the defendants from collecting rents, and that the violation thereof was charged as a contempt, and, in the course of the opinion it was said“ It does not appear, from the papers submitted on the appeal, in what way the fine above mentioned was made up, and there does not seem to be any evidence to warrant its imposition. This is a civil contempt * * *.”

Title 3 of chapter 17 of the Code of Civil Procedure relates to “ proceedings to punish a contempt of court other than a criminal contempt; ” and in § 2266 of the Code it is provided as follows: “In cases specified in § 14 of this act * * * and a right or remedy of a party to a civil action or special proceeding pending in the court, or before the judge or the referee may be defeated, impaired, impeded or prejudiced thereby, the offense must be punished as prescribed in this title. Then follows several sections relating to the practice; and in § 2281 of the Code of Civil Procedure it is provided as follows l “If it is 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 or remedies of the party to an action or special proceeding, brought in the court or before the judge or referee, 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.” And in § 2285 of the Code of Civil Procedure it is provided what punishment may be inflicted, for “ omission to perform any act or duty which it is yet in the power of the offender to perform, he shall be imprisoned only until he has performed it,” and then follows a provision in the section as follows : “ In every other case, where special provision is not otherwise made by law, the offender may be imprisoned for a reasonable time not exceeding six months, and until the fine, if any, is paid; and the order and the warrant of commitment, if any, must specify the amount of the fine and the duration of the imprisonment.”

In Moffat v. Herman, 116 N. Y., 131; 26 St. Rep., 328, it was. held that: “Under the provisions of the Code of Civil Procedure, §§ 14, 2281, 2284, defining what is, and providing the punishment for, a civil contempt, the amount of fine which may be imposed must be based upon proof of the damages actually sustained.”

In the case in hand it appears that a decision of the motion made by the plaintiffs to adjudge the defendants in contempt was made September 17, 1892, and signed by the judge presiding, which stated: “ The motion made by the plaintiffs to adjudge the above named defendants, Daniel McGrucken and others, aider-men, and forming part of the common council of the city of Utica, in contempt for a violation of an injunction order issued in the above action and to punish them individually for the same, is granted, and a fine of $200 is imposed upon each of said defendants, which when paid will be paid over to the county clerk of Oneida county, and an additional fine of fifteen dollars upon each of said defendants, which when paid will be paid over to the plaintiffs for their costs and disbursements in this proceeding as a punishment for said offense. An order will be entered in pursuance of the above containing all necessary provisions, and among others that each of said defendants stand committed to the jail of Oneida county until the fines imposed against him are paid.”

Subsequently an order was prepared which contained the following language: “ It is * * * found, upon the evidence presented, that the above named defendants, Daniel McG-ucken (and others), are and each of them is guilty of contempt of this court, and that each of them has knowingly and willfully disobeyed the injunction order which had been granted in this ac- ■ tian and duly served upon them and set forth in the moving papers in full, in the following particulars and manner ” ; then follows a quotation from the injunction order; and thereafter the order contained the following: “ The above named defendants, while said order remains in full force and effect, did, as members of the common council of said city of Utica, jointly and severally and knowingly and willfully, vote to let a contract or contracts to the Warren-Seharf Asphalt Paving Company to pave the several streets above mentioned with the best quality of Trinidad asphaltum to be taken and obtained from Pitch Lake in the island of Trinidad, and did participate in concluding, and in attempting to conclude, said contract or contracts with said Warren-Scharf Company. For the disobedience of said defendants to said order, as above found and stated, each of said defendants are adjudged guilty of contempt. It is further ordered and adjudged that for such acts of contempt the said defendants, Daniel Me-' Grucken, Robert Boyce, Charles P. Clark, Michael F. Corcoran, John L. Dowd, John E. Roberts, John Welch and Joseph Tessy be and they each are fined, and a fine is imposed upon each for the sum of two hundred dollars, which said fines, when collected, shall be paid to the county clerk of Oneida county.

“And it is further ordered and adjudged that each of said defendants be and they are fined the further sum of $15, which, when collected, shall be paid to the plaintiffs for their costs and disbursements in this proceeding. It is further ordered and adjudged that each of said defendants stand committed to the jail of Oneida county, in the city of Utica, until said fines imposed upon them are paid, or he is discharged according to law. The proper process will be issued to the sheriff of Oneida county for the execution of this order. This order will be entered in the Oneida county clerk’s office; ” and it was signed by the judge presiding at the special term. The order does not contain any provision in pursuance of § 14, declaring that “ a right or remedy of a party to a civil action or special proceeding pending in the court may be defeated, impaired, impeded or prejudiced ” thereby or the equivalent; nor the language found in § 2281 of the Code of Civil Procedure, viz.: “ If it is 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 or remedy of a party to an action or special proceeding, brought in the court or before the judge or referee, the court, judge or referee must make a final order accordingly, and directing that he be punished by fine or imprisonment, or both, as the nature of the case requires.”

In Matter of Swenarton v. Shupe, 40 Hun, 42, it was held, That as the punishment exceeded that which the court was authorized to inflict by § 9 of the Code of Civil Procedure, for a criminal contempt, it was to be assumed that the proceedings were instituted under the provision of the Code authorizing the punishment of a person for a contempt in a civil action for misconduct by which a right or remedy of another may- be defeated, impaired, impeded or prejudiced. That assuming the order to have been made under such latter provisions, it was void because no adjudication was made that the misconduct complained of was calculated to or actually did defeat, impair, impede or prejudice the rights or remedies of the petitioner, or that the latter had sustained any loss or damage thereby.”

The doctrine of the above ease was followed in Dinsmoor v. Commercial Travellers' Association, 14 N. Y. Supp., 676; 38 St. Rep., 624. And in Sandford v. Sandford, 40 Hun, 540; 2 St. Rep., 133, it was held that “ To punish a party for contempt in a civil proceeding, his conduct must be such as to defeat, impair, impede or prejudice a right or remedy of the party affected by it, and that fact must be ascertained and adjudged by the court directing the punishment which is to be imposed.”

In Wheelock v. Noonan, 55 Superior Court, 23 J. & S., 305; 13 St. Rep., 316, § 2281 of the Code of Civil Procedure was referred to, and a construction thereof was given in accordance with the views expressed by us in Dinsmoor v. Commercial Travellers' Association, supra.

In Fischer v. Raab, 81 N.Y., 235, it was held: “In proceedings under the provisions of the Code of Civil Procedure (§ 14), to punish as a contempt an act of misconduct, or neglect of duty, in a civil action pending, it must be made to appear that the act or omission complained of is one ‘by which a right or remedy of a party * * * may be defeated, impaired, impeded or prejudiced,’ and this must be adjudged to authorize the infliction of the punishment.”

We think the decision and order to which reference has been made, pronounced by the special term, because they contained no such adjudication and determination as are provided for by §§ 14, 2266 and 2281 of the Code of Civil Procedure, should not be sustained.

(8) The order to show cause recites that the summons and complaint, and the injunction, and all the papers on which the injunction was granted, were read. The order made at the special term, brought here by appeal, does not recite the summons and complaint as having been read at special term when the order was made, and the appeal book does not contain the complaint.

It does contain, however, numerous affidavits in which it is stated by the defendants that they intended to comply with the injunction order, and to avoid any act which would in anyway in letter or spirit violate the same, and that all their acts were done openly without any attempt at concealment and that they had the advice of the city attorney that they were at liberty to perform the several acts which are alleged to be in violation of the injunction order and that by such acts they would not violate the injunction order, and that they acted upon his advice reljing upon it and in good faith.

It was said in People ex rel. Kelly v. Aitken, 19 Hun, 329, by the general term in the second department, viz.: “ If, for example, one, after careful examination, wrongly interpret, and through this mistake disobey an order, the majesty of the law is not offended, nor the dignity of the court impaired ; and, as he is innocent of willful offence, the infliction of punishment could have no justification. The willful disobedience, expressed in the statute, means conduct intentionally and designedly at variance with the mandate of the court.”

The complaint of the plaintiff not being found in the appeal book the full objects of the action are not ascertainable, although it is inferred that the action was begun by taxpayers under § 1925 of the Code of Civil Procedure to restrain waste.

In Talcott v. The City of Buffalo, 125 N. Y., 280; 34 St. Rep., 871, it was held that the remedy under that section “is confined to cases where the acts complained of are without power, or where corruption, fraud or bad faith, amounting to fraud, is charged; the words “waste” and “injury” include only illegal, wrongful or dishonest illegal action.” And in Ziegler v. Chapin, 126 N. Y., 348; 37 St. Rep., 490, Talcott v. The City of Buffalo was referred to in the following language : “ We have quite recently declined to become arbitrators between taxpayers and their municipal officers in every instance of disagreeing opinions or conflicting judgments, and have decided that, jurisdiction in the officials existing, the courts can interfere in actions like that before us only where some fraud or collusion or bad faith is alleged and proved.”

By reason of the absence of the complaint and because the affidavits used at the special term are very conflicting, and by reason of the views already expressed which lead, to a reversal, we omit any comment upon the merits of the application, and rest our conclusion upon the views already expressed. We think the order appealed from should be reversed with costs.

Order and decision reversed, with one bill of costs.

Martin and Merwin, JJ., concur.  