
    Mark v. Hyatt et al.
    
    
      (Supreme Court, General Term, First Department.
    
    October 16, 1891.)
    Malicious Prosecution—Application for Injunction—Good Faith.
    An action to recover damages for malicious prosecution will not lie against a person who applies for an injunction against plaintiff in the full belief that the court had jurisuiction to grant it on the case made, if it appear afterwards that the court had not jurisdiction to grant the injunction.
    Appeal from circuit court, Hew York county.
    Action by Jacob Mark against Elizabeth A. L. Hyatt and Thaddeus Hyatt to recover damages against defendants for procuring an injunction against plaintiff from the superior court, which that court had no jurisdiction to grant. From a judgment dismissing the complaint on the merits plaintiff appeals.
    
      Argued before Van Brunt, P. J., and Bartlett, J.
    ■ Edward D. McCarthy, for appellant. George W. Van Slyck, for respondents.
   Bartlett, J.

This controversy grows out of a suit in the superior court, relating to certain patents of Elizabeth A. L. Hyatt, under which she had granted licenses to the firm of Ingalls & Mark, consisting of JoshuaII. Ingalls and Jacob Mark. In that suit Mrs. Hyatt alleged that Ingalls & Mark had broken their agreement with her, and she sought a rescission of the license, an accounting for the royalties, and injunctive relief, all of which were awarded her by the judgment. Mr. Mark was served with a. copy of the judgment containing the injunction against any further use, manufacture, or sale of the articles protected by the patents; and, acting under the advice of counsel, he obeyed it, thereby suffering some pecuniary injury, although the ease does not disclose how much. He instituted the present action against Mrs. Hyatt and her husband, who assisted her in the superior court suit to recover damages for the wrong which he alleges they committed against him in procuring an injunction which the superior court had no jurisdiction to' grant. The proposition of the learned counsel for the appellant that the superior court had no authority to take cognizance of the ease of Hyatt v. Ingalls et al. is not open to discussion since the decision of the court of appeals to the contrary. Hyatt v. Ingalls, 124 N. Y. 93, 26 N. E. Rep. 285. The most that can be claimed is tho,t the part of the judgment which enjoined the use, manufacture, or sale of the patented articles was in excess of the jurisdiction of the state court. At the circuit, Mr. Justice Barrett refused to-hold as matter of law that this injunction was null and void; but he expressed the opinion that, even if it were so, the plaintiff was not entitled to maintain the present action, inasmuch as he was in no wise injured by the restraining order, which there never was any attempt to enforce, and which, if made-without jurisdiction, amounted to nothing more than a futile judicial threat. He therefore dismissed the complaint. While it is clear that the injunction in the superior court was erroneously granted, it is not clear that it was granted without jurisdiction. The court of appeals speaks of the injunctive part of the decree as “ unnecessary or improper, because on the judicial rescission of the license the defendants could not further proceed under it, and the court had no power to restrain the defendants from acts of mere infringement of the plaintiff’s patent.” Hyatt v. Ingalls, supra. This language indicates that, if the purpose of the injunction was simply to. restrain any further action on the part of the defendants under the rescinded agreement, the injunction would not be deemed void, although it was needless. But, however this may be, the dismissal of the complaint may be sustained on the ground that, even if the superior court did act without authority in granting the injunction, the parties who procured it cannot be held liable, in a suit of this character, to charge them as wrong-doers, without proof that they were aware of the lack of jurisdiction. Such is tbe rule laid down by the general term of the fourth department in Eldred v. Fawdrey, 16 N. Y. St. Rep. 83. That was a suit to recover damages for a prosecution for libel alleged to have been maliciously instituted in the court of a justice of the peace; and it was held that the burden was upon the plaintiff to show that the defendant knew that the justice’s court had no jurisdiction to try the action for libel which he brought in that tribunal. In the ease at bar, not only did the plaintiff fail to establish his allegations of malice, but the entire course of the defendants in prosecuting the superior court suit shows that they must have sincerely believed that the court had jurisdiction. I think the judgment should be affirmed.

Van Brunt, P. J., concurs in the result.  