
    Benjamin F. Howe, Plaintiff, v. John H. Searing, Defendant.
    1. On an appeal to the Court of Appeals from a judgment awarding to the plaintiff a perpetual injunction, restraining the defendant from doing the acts which are the subject of complaint in the action, if an undertaking be given, by sufficient sureties, in the sum of $250, (or that sum be deposited with the clerk,) pursuant to section 334 of the Code, such appeal operates as a stay of all proceedings upon the judgment. (Code, § 342.)
    2. An application to the Court to punish the defendant for a contempt in violating the injunction awarded by such judgment, and the issuing of an attachment, and a commitment for such contempt are respectively proceeding!? “ upon th.6 judgment,” and the right of the plaintiff to make such an application, and the action of the Court thereon are stayed, pending such appeal.
    3. But the taking of such appeal and perfecting the same do not vacate or suspend’ the injunction so awarded. The appeal only operates to suspend for the time being, the power to punish the defendant for the violation of the injunction.
    
      4. Hence, the defendant, after being duly notified of such judgment proceeds at his peril, and if he violates its provisions he is in contempt, for which he will remain liable to punishment, and may be punished when the appeal is determined, unless the judgment is reversed on the appeal.
    (Before Woodruff, J.)
    At Special Term;
    July 7th, 1860.
    By the final judgment in this case the defendant was enjoined and restrained from using the name of the plaintiff “Howe,” or the term “ Howe’s ” in connection with the business of baking, or as descriptive of the bakery kept by him, or upon the signs or wagons, tickets or bills used by him, and was required forthwith to cause such words to be stricken out and erased from the signs on the building, wagons, &c., so used.
    After being personally served with the judgment, the defendant appealed to the General Term, where such' judgment was affirmed, and he then appealed to the Court of Appeals, and the undertaking by sufficient sureties in the sum of $250 as required by section 334 of the Code was executed and filed.
    The defendant continued to use the name of “ Howe ” and “ Howe’s ” as theretofore, in disregard of the judgment of this Court, and the plaintiff thereupon moved this Court for an attachment to punish the defendant for a contempt in not obeying the judgment.
    The facts appear in the case on the appeal to the General Term, reported ante, page 354. and in the opinion of the Court on this motion.
    
      Moses Ely, for the plaintiff, in support of the motion,
    
      Luther R. Marsh, for the defendant, in opposition thereto.
   Woodruff, J.

The judgment in this action in terms enjoined and restrained the defendant from using the name of the plaintiff, “Howe,” or the term “Howe’s,” in connection with the business of baking, or as descriptive of the baking establishment kept by the defendant, or upon the signs or wagons, tickets-or bills, used by the defendant; and the said judgment required the defendant forthwith to cause the word “Howe,” or “Howe’s,” to be stricken out and erased from any sign, on the premises of the defendant, and from any wagon or wagons used by him, and awarded to the plaintiff his costs of suit.

The judgment so rendered, being entered, was duly served on the defendant, personally; and within the period allowed therefor, he appealed to the General Term of this Court, by whom the judgment was affirmed, and the judgment of affirmance was duly served on the defendant, personally. Thereupon the said defendant appealed to the Court of Appeals from the judgment, and the undertaking required to render such appeal a stay of proceedings, by sections 334 and 342 of the Code, was executed and filed.

The plaintiff now moves for an attachment to punish the defendant for a contempt in not obeying the judgment, upon proof that he still continues to use the name of “ Howe" and “Howe’s” on his signs and otherwise, as descriptive of his baking establish-' ment, and upon the signs and wagons used by him, and has not discontinued the use of those names, but continues to use them, and by other means to hold out to the public that the establishment of the defendant is kept and superintended by the plaintiff.

By the express terms of the 342d section of the Code, the perfecting of an appeal, (in cases not provided for in certain specified sections which do not include the present case,) by giving the undertaking mentioned in section 334, shall stay all proceedings in the Court below upon the judgment appealed from.

If, therefore, this motion is a proceeding “ upon the judgment,” the motion is improperly and irregularly made; for, as to all such proceedings, the plaintiff’s hands are tied.

And if an attachment and a commitment thereunder, for disobeying the judgment appealed from while the appeal is pending, are “ proceedings upon the judgment,” then the motion therefor cannot be granted; for, not only the action of the plaintiff, but the action of the Court therein, is stayed pending the appeal.

Although the subject of staying proceedings pending an appeal from an interlocutory order of the Court is discussed at length in Hart v. The Mayor, &c., (3 Paige, 381,) and the provisions of the Revised Statutes in relation to such appeals, and the cases in. England stating the practice of the Court of Chancery and the House of Lords, are cited and considered, no case is cited, to me bearing upon the precise point raised by this motion.

In Graves v. Maguire, (6 Paige, 381,) in the opinion of the Chancellor, given under the provisions of the Revised Statutes, he says: “ The effect of an appeal, after the proper steps have been taken to render it a stay of proceedings, upon the order or decree appealed from, is, to leave the proceedings in the same situation as they were at the time of perfecting such appeal, but not as they were before the order or decree appealed from was entered. If the order appealed from was an order granting an injunction, the same is not dissolved by the appeal, so as to authorize a party to proceed in violation of the injunction pending such appeal, although the present or immediate power of the Court below to punish the party for a breach of the injunction, pending the appeal, would, perhaps, be suspended until after such appeal was disposed of by the appellate Court.”

The statute which was then in force applicable to the subject (2 R. S., p. 607, § 89) declared that the filing and perfecting an appeal, by giving security for costs, “ shall stay all proceedings in the Court of Chancery upon the order or decree appealed from, and upon the subject-matter thereof.”

The 82d section of the same article of the Revised Statutes (2 R. S., 606,) provided that an appeal from an order or decree directing the payment of money should not “stay the issuing of execution or other process to enforce the decree or any proceedings thereon, unless a bond be given by or on the part of the appellant,” &c.

Under this section it was held that an appeal and the giving of the bond, after execution issued, do not, of themselves, stay the Sheriff from proceeding upon the execution; but that an order of Court is necessary to effect such a stay. (Burr v. Burr, 10 Paige, 166; Clark v. Clark, 7 id., 607.)

If the statute last referred to be taken to mean, as-it clearly must, by implication, that, if a bond be given, the appeal shall stay the issuing of execution or other process to enforce the decree and any proceedings thereon, the decisions last cited must proceed upon the ground that, execution having issued, the case is not within the description in the statute, and the proceedings of the Court may be stayed, and yet the Sheriff may consummate the execution of the process.

But if the views of the Chancellor expressed in Graves v. Maguire, under a statute in all particulars material to this discussion, identical with section 834 of the Code are sound, the defendant is in contempt for disregarding the decree of this Court, and he will be in contempt so long as he violates its provisions. From the moment it was served upon him it became operative as an injunction, and no appeal would dissolve it or suspend its operation as such. When the appeal was taken, he was under injunction, and if the appeal stayed the proceedings it did not release the defendant. He is still held under injunction in the same situation as he was when the appeal was perfected. And every act of disobedience is an act of contempt for which he is liable to punishment.

I think this view of the subject is clearly correct, and that in some form and at some time the plaintiff will be entitled to full redress for the defendant’s disregard of the judgment in the plaintiff’s favor.

But, as also intimated in the opinion of the Chancellor, it does not follow that the defendant can now be proceeded against for his contempt.

Such a proceeding is necessarily founded upon the judgment itself. It is instituted to compel the defendant to yield the very relief which the plaintiff sought by his complaint, and which the action was brought to secure; it is instituted to compel the defendant to yield the very relief which the judgment awarded to the plaintiff. It is a proceeding to enforce the judgment, which can probably be enforced in no other manner. It is the ordinary means of enforcing such a judgment. The statute authorizing the proceeding terms it a proceeding “to enforce civil remedies.” (2 R. S., 534, &c.)

The title of the plaintiff rests on the judgment and upon that alone. I do not know of any general expression, therefore, which would more plainly include the present application than that which is used in the Code as well as in the Revised Statutes, by both of which “ all proceedings in the Court below upon the judgment appealed from are stayed,”

I think, therefore, that no present proceedings can be taken, to punish the defendant for violating the judgment, pending the appeal.

The defendant will act at his peril. If the judgment appealed from shall be reversed, it will then appear that the plaintiff has no such rights as were awarded to him by the judgment; the judgment will be held for nought, and no proceedings for disregarding it could thereafter be brought and sustained; but if it shall be affirmed, the plaintiff will be at no loss for means of punishing the defendant for what will then be the finally established right of the plaintiff, and for what will then be contumacy for which the pending appeal will furnish no protection.

And this view of the subject is I think to be preferred to one which pending the appeal might subject the defendant to imprisonment, for which on reversal (if that should happen) there might be no adequate compensation.

It is plausibly suggested that if the defendant, pending the appeal, continue to use the plaintiff’s name, the relief which at the end of the litigation he may obtain will be of no value. That the use of his name and reputation by the plaintiff during that time will destroy the whole object and purpose of the suit.

But the answer is equally plausible; if the defendant does obey the judgment of the Court pending the appeal, discontinuing the use of the plaintiff’s name, which he claims the right to use, as an aid to his business and the good-will which he purchased, such a discontinuance will destroy the whole value of the right he claims; at the termination of the appeal, two or three years hence, he cannot regain the advantages which he now has in the use of the name.

Heither of these considerations can prevail in favor of either party. The plaintiff has established his right to enjoin and restrain the defendant. He has judgment therefor and has placed the defendant under injunction.

The defendant acts at his peril in disregarding the judgment.

But pending the appeal, proceedings against the defendant for contempt in such disobedience are proceedings on the judgment which cannot be prosecuted.

The motion must therefore be denied, with $10 costs.

Ordered accordingly.  