author: By the Court.—Sedgwick, Ch. J. Ingraham, J.—[Concurring in result.]

text:
    PEOPLE, &c., ex rel. THEODORE ROOSEVELT, et al., Respondents, v. FRANKLIN EDSON, Impleaded, et al., Appellant.

      Injunction exparte—power to grant.—Common Pleas and judges—not county court or county judges.-—-Injunction order—when void, and effect as to contempt for violating.—Executive officer—power of courts to control—Power of mayor to appoint is executive.

    An injunction can only be granted ex parte, by the court in which the action is brought, or a judge thereof, or a county judge. The provisions of section 606 of the Code of Civil Procedure alone apply; those of sections 277 and 772 do not.
    The court of common pleas of the city and county of New York is not a county court, and the judges thereof are not county judges.
    Consequently held, an expande injunction order made in an action pending in this court by a judge of the court of common pleas of the city and county of New York, is without jurisdiction and void.
    A violation of a void injunction order is not punishable as contempt.
    The power of a court of equity to control the acts of an executive officer is limited to such acts and duties as are merely ministerial, and involve no exercise of discretion (by Ingraham, J.).
    The power of the mayor of the city of New York to appoint a commissioner of public works and a counsel to the corporation, is an executive power of the state vested in him by the constitution and laws, and involves the exercise of discretion. An ex parte injunction restraining him from exercising, or controlling him in the exercise of such powers of appointment is therefore void; and his disregard of it is not a contempt (by Ingraham, J.).
    Chapter 531, laws "1881, has no application to such a case, the action of the mayor not being an act on behalf of a county, town, village . or municipal corporation (by Ingraham. J.).
    People v. Dwyer (90 W. Y. 402); People v. Sturtevant (9 lb. 263), distinguished (by Ingraham, J.).
    Before Sedgwick, Oh. J., O’Gorman and Ingraham, JJ.

      Decided April 13, 1885.
    Appeal from an order convicting defendant Franklin Edson, of contempt in disobeying an ex parte injunction-order.
    The injunction order was made to accompany a summons in an action brought, or about to be brought, in this court. The order was signed by a judge of the common pleas for the city and county of New York. The defendant disregarded the order by doing what the terms of the order enjoined him from doing, and, in certain proceedings to punish him therefor, was held to be in contempt.
    Further facts appear in the opinions.
    For decision below by Freedman, J., see 51 Super. Ct. 238.
    For decision dissolving the injunction order, by Trtjax, J., see Ib. 22T.

      Sewell, Pierce & Sheldon, attorneys, David Dudley Field and Robert Sewell, of counsel for appellant,
    on the questions considered in the opinion, argued :
    I. The first question which arises in this controversy, is as to the authority of Hon. Miles Beach, judge of the court of common pleas for the city and county of New York, to grant an injunction order in a case pending in the superior court. The only authority which exists for the granting of injunctions is section 606 of the Code, which provides that “ an injunction order may be granted by the court in which the action is brought, or by a judge thereof, or by any county judge, and where it is granted by a judge, it may be enforced as the order of the court.” Now, this order, to begin with, was not granted by the court. It was not granted by a judge of the court, and the question is, whether or not it was granted by a county judge. And then the question further arises, whether the word “ judge” in the last clause of the section, is tobe confined to a judge of the court, or whether it includes a county judge, and also what is meant,- by its being enforced as the order of the court.
    And first, it is very clear that the Honorable Miles Beach did not, when he granted this order, purport to act as a county judge; he did not sign his name as a county judge, but, on the contrary, described himself as a “ judge of the court of common pleas for the city and county of New York.” We are to suppose from this signature, that he thought that he was granting the injunction out of the court of common pleas, because he signed himself as a judicial officer of that tribunal. If he supposed or thought that he was acting as a county judge, he should have so designated himself in his signature, so that he would inform the persons to whom his mandate might come, what his official authority was for issuing such an order.
    It seems clear that no judge of the court of common pleas, as such, has any right to grant an order in a cause depending in the superior court, and that it is only by virtue of an extra-judicial authority as county judge, that he has any right to sign an order of the superior court. If, then, his right depends upon such official designation, is it not clear that he should have set forth the capacity in which he was acting, by such an addition to his signature, as would convey to the person sought to be enjoined, information respecting the jurisdiction of the person who sought to enjoin him %

    The language of the section referred to, “ where it is granted by a judge, ” refers undoubtedly to the preceding portion of the sentence ; whether it includes only judges of the court, where they act out of court and make the order, or 'whether it includes also an order granted by any county judge, is open to discussion; and the further suggestion that the order may be enforced as an order of the court when so made, is one which opens up a branch of inquiry as to the meaning of the word “ enforced ” in this section.
    Is this proceeding taken for the purpose of enforcing that order ? If it is, then the answer to it is explicit and plain, and ought not to take ten minutes to argue and decide. The order is dead and gone ; the court has decided that it ought not to have been issued ; the court has refused to continue it; how, then, can any action be taken to enforce it ? This is the only authority which can be cited for this proceeding. There is no power in this court to punish for contempt, committed with respect to the order of any other court but this, or any other judge than the six judges composing this tribunal, except this last clause of section 606, which says that the order may be enforced as the order of the court. It may be, that if this order was still in force, and that the defendants contemptuously refused to obey it, proceedings for its enforcement in the nature of a proceeding to punish for contempt, might be brought within the section; but in the present aspect of this case, with the order gone, wiped out, declared null and void, and no order remaining calling for enforcement, it would seem as if this court, were deprived of any authority whatever, to punish for disobedience of such a vacated order.
    The proceeding is for a criminal contempt. A perusal of section 8 of the Code of Civil Procedure will show that the court has power to punish for a criminal contempt, a person guilty of either of the following acts and no others. It then recites certain acts which are so punishable, and among them is, “ willful disobedience to its lawful mandate and this is tho only act which can possibly be made the basis of a proceeding to punish the defendant for contempt ; because the court has no power to punish for any other contempts than those contained in the eighth section, and this is the only one contained in the eighth section about which any question is made.
    Now, it will be observed, that the power of the court is limited to punish a person for willful disobedience to its lawful mandate. What lawful mandate of this court has Mr. Edson violated ? Can it be said that an order signed by Miles Beach, as judge of the court of common pleas, for the city and county of New York, upon a day, when—this court will take judicial cognizance—its six judges in full health, in the enjoyment of their physical and mental powers, were here in the city, ready to discharge all their lawful obligations—can it be said that this order so signed, is a lawful mandate of this court ?
    It will not do to say that it is a lawful mandate—it must be a lawful mandate of this court, before this court can punish for contempt; and while a county judge has the undoubted authority to sign an injunction in an action in tho superior court, it cannot for a moment be pretended, that if a county judge should sign such an injunction, and should not describe himself as a county judge, anybody could be punished for contempt for disobeying an order so issued. Now, that is just this case. Miles Beach does not describe himself as a county judge, does not pretend to act in such a faculty, but signs himself as if he were granting an order in the court of common pleas, which probably he thought he was granting, when he signed the paper in question.
    If any contempt has been committed here, it has been a contempt against the court of common pleas, and this court is not authorized by law to punish such a contempt. And, as we have said before, the order cannot be enforced as the order of the court, because it has been set aside and vacated. There is no order of the court left to enforce.
    It has been repeatedly held in this state, that no proceedings to punish for a contempt could be taken, after the order which was disobeyed was set aside. It may be that while an order is in full force, in a case where the court or judge granting it had jurisdiction to make it, it is entitled to obedience, and that while in such force, proceedings for disobeying it might be entertained by the court. But the principle upon which this stands, is, that the orders of the court while in force are entitled to consideration, and that the court will see that they are obeyed. But the principle does not hold after a full argument is had, and it is found that the order ought never to have been granted, and that the act which was forbidden by the order, was an act which the defendant had an undoubted legal right to perform, and which the order wrongfully interfered with.
    So, too, if an injunction order is too broad, it is said that notwithstanding that, it ought to be obeyed. And we accede to this ■ doctrine ; but if it is modified, no proceeding can be taken to punish for contempt in disobeying it, with respect to the modification after the modification has been made, because the court has confessed, by the modification, that the order was too broad, and ought never to have been granted to that extent. To punish for contempt after the order violated has been vacated, is for the court to say to the person charged with contempt : “ It is true we have made an order that we never ought to have made ; it is true that we have commanded you to refrain from doing an act, which we ought never to have commanded you to refrain from doing, and that our action in that respect was improvident, unwise and illegal; but, notwithstanding that, we will punish you for daring to set your private judgment up against the judgment of the court, and doing that which we forbade you to do. ” It is submitted that this doctrine can find no place in the enlightened jurisprudence of the nineteenth century.
    The following cases sustain our proposition under this head : Robertson v. Bingley, 1 McCord Ch. 333 ; Peck v. Yorks, 32 How. Pr. 409 ; Chapman v. Dyett, 11 Wend. 31; Moat v. Holbein, 2 Edw. Ch. 188 ; Money v. Jorden, 1 Eng. L. & Eq. 146.
    This proposition was presented to the learned judge below, but he answered it on the argument by saying, that this court in the case of the Atlantic, &c. Tel. Co. v. Baltimore, &c. R. R. Co. (46 Super. Ct. 377), has decided that a violation of an order of injunction might be punished, after the order had been vacated. A reference to this case shows that the learned judge’s memory of it was not accurate. As we read the case, it simply decides, that an injunction order which is too broad, should nevertheless be obeyed, and that a violation of the plaintiff’s rights by the defendant, within the scope of that part of the order which is upheld by the court, may be punished. This is exactly the doctrine we contend for here. If the court has in that case, or in any other case, decided, that it will punish disobedience of every order made in a case in which the court has jurisdiction, as a criminal contempt, irrespective of the question of legal right to make, such an order ; then we respectfully suggested, that this is a favorable opportunity of retreating from an untenable position.
    A criminal contempt of necessity supposes, that a lawful order of the court has been willfully disobeyed. How can that be criminal which the ' court itself decides is justifiable, when it decides that the order never should have been granted % Again, if there is- a technical disobedience to an order, how can it be held to be criminal, when the court decides, no matter for what reason, that the judge should not have granted the order ?
    II. We say, too, that this injunction is void, because the plaintiffs have no capacity to sue ; the court did not have jurisdiction of the persons of the plaintiffs for the purpose of granting an injunction. It is not necessary to remark to this court, that a tax-payer of the city of New York, has no authority to maintain an action to set right the municipal government of this city, or even to restrain waste in the city property or funds. The appropriate officer to bring such an action is the attorney-general ; it is a public wrong, and it ought to be vindicated by a public officer. The authorities for this are so numerous that they must be familiar to all. It was settled in this state as long back as the cases of Wetmore v. Story, 22 Barb. 484; De Baun v. Mayor, 16 Ib. 393; Ely v. Connolly, 7 Abb. N. S. 8 ; Doolittle v. Supervisors of Broome, 18 N. Y. 155.
    The question is whether the order commanding him to desist from filling the vacancies, was within the jurisdiction of the superior court. To put the question is to answer it. The order was no more within its jurisdiction on December 30, 1884, than it would have been on December 30, 1883. If valid, it would make the court, and not the mayor, judge of the fitness of persons to be nominated, and if he wished to nominate he would have to ask the court, and it would answer of its own knowledge or appoint a referee.
    The plaintiffs, then, had no standing in court to ask for the injunction, unless they have gotten it by virtue of some legislative act; and in accordance with these views, it will be seen, from the papers, that they seek to get their authority from the act of 1881 (chapter 528), which is itself an amendment to the act of 1880. A bare reading of the act will show that the intention of the legislature was to give to citizens of New York, who were tax-payers, and who had paid taxes for a certain' time, the right, which they did not have before, to maintain actions to restrain' or prevent improper expenditure of the public funds, or wasteful interference with the public property. The words “illegal act ” contained in the statute, must be construed in connection with all the other words of the statute, and must be construed to mean an illegal act, in connection with the property of the city.
    It cannot be imagined that the legislature intended to interfere with the discretionary powers of the mayor of the city of New York, and to give any citizen the right to enjoin him from the exercise of his discretion, whenever, in the views of that citizen, he was about to exercise it unlawfully. The law imposed upon the mayor of the city of New York, the duty and the power of making appointments to office ; that law cannot be repealed by implication, and the statute in question gives these plaintiffs not any color of right to maintain an action, to prevent the mayor from exercising his lawful authority. Where the law gives to officers powers which require the exercise of sound judgment, the correction of any errors that they may make in the exercise of their functions, belongs to some other tribunal than a court of equity, and belongs to some other plaintiff to set them right, than a tax-payer of the city of New York, acting under the authority of this statute ; no matter who the plaintiff is, chancery has no jurisdiction to interfere by injunction. To suppose that this act, by the use of the words ‘ ‘ any illegal act, ” intended to reach the executive acts of appointment of officers, conferred upon the mayors of cities by the legislature, is to disturb the well-settled rules of construction of statutes, and to increase enormously the powers of courts of equity, sheerly by implication, beyond those powers which centuries of undisturbed judgments had rendered settled and definite. Such a construction can never be put upon a statute, unless the language of it leaves no other alternative to the court.
    The counsel here commented on and distinguished People v. Sturtevant (9 N. Y. 263); Hunt v. Hunt (72 Ib. 217); Lange v. Benedict (73 Ib. 12); Mayor v. N. Y. & Staten Island Ferry Co. (64 Ib. 232).
    The doctrine, that any order of a court which has jurisdiction of the subject matter of the action, must be obeyed by the citizen, is one inimical to freedom, and to the just rights of the people. It is entering into a position open to the most serious abuses, as to the exercise of the powers of the judges of the courts. It places it in the power of a man, simply because he happens to be a judge, to thwart the administration of high municipal officers, of the matters confided to their charge by the people of this state. It interferes with them in them obligations to the law, and comes between them and their consciences in the discharge of their duties.
    The mayor was advised by counsel that the injunction was void. He, believing the advice of his counsel, acted upon it, and now it is sought, by the order of the judge below, to turn that action into a criminal offense, which we say is a monstrous doctrine, that calls for interference from this appellate tribunal (Mooers v. Smedley, 6 Johns. Ch. 28 ; Leroy v. Mayor, 4 Ib. 352 ; Patterson v. Mayor, 1 Paige, 114 ; Atty. General v. Mid. Kent R. Co., L. R. Ch. 100 ; Atty. General v. Gt. N. R. R., 4 De Gex & Sm. 75 ; Atty. General v. R. R. Co., 35 Wis. 425; Atty. General v. Utica Ins. Co., 2 Johns. Ch. 371; Whitney v. Mayor, 1 Paige, 548 ; Mayor v. Messerole, 26 Wend. 132 ; N. Y. Life Insurance Co. v. Supervisors of New York, 4
      Duer, 192 ; Walker v. Davisson, 4 Paige, 229 ; Clark v. Brooklyn Bank, 1 Edw. 361; Ward v. Kelsey, 14 Abb. Pr. 106).

      Charles P. Miller, attorney, and of counsel for respondents, on the questions considered in' the opinion, argued:
    I. A judge of the court of common pleas for the city and county of Mew York, has the powers of a county judge, and as such is authorized to issue an injunction in an action pending in the superior court (Wood v. Kelly, 2 Hilt. 334; Lang v. Brown, 6 Hun, 256 ; Matter Morgan, 56 N. Y. 629 ; Code Civ. Pro. §§ 606, 772, 277, 3343).
    II. Chapter 531 of the laws of 1881 authorizes the plaintiffs to bring this action. An examination of these acts will show that the statutes were originally confined to actions preventing waste of public property ; but that the act of 1881 gives a new right in allowing the action to be brought to restrain “ any illegal official act on the "part of such officers,” as well as to prevent waste, &c., which alone was permitted by the former statutes.
    III. The court had power to enjoin a corrupt and illegal exercise of the appointing power by the mayor (Laws 1881, chap. 531; Opinion of Truax, J., 51 Super. Ct. 227 ; Opinion of Freedman, J., Ib. 238). The argument, that the acts enjoined were legislative powers, or statutory duties, beyond the control of any corut, proceeds on the theory that a mayor and board of aldermen within their statutory powers are analogous to a state legislature, federal congress, parliament or other sovereign legislative body. This idea is wholly erroneous. There is nothing sovereign about the powers of ■ a mayor and board of aldermen. . Such officers or board are merely a part of the directorate of a corporation, of a public corporation it is true, but of a kind which, from time immemorial, has, in all its functions, been peculiarly subject to judicial control (Davis v. Mayor, &c., 1 Duer, 450 ; People v. Sturtevant, supra; People v. Dwyer, supra). The meaning of the statement that a court will not interfere with the exercise of a discretionary power lodged in a person or corporation, is that it will not substitute its own discretion for that of the person or corporation, and exercise the power. But it will restrain an illegal or improper exercise of the discretion in either. In the application of these rules there is no difference between municipal and private corporations (Davis v. Mayor, &c., 1 Duer, 497).
    IV. That the injunction was vacated before the motion to punish for contempt was argued did not deprive the court of power to punish the contempt. This court has not followed Moat v. Holbein (2 Edw. Ch. 188), or Peck v. Yorks (32 How. Pr. 409). See Atlantic Tel. Co. v. B. & O. Tel. Co. (46 Super. Ct. 377). Even if Moat v. Holbein is good law, it refers only to a case in which the contempt proceeding is begun after the injunction has been vacated (Cook v. People, 16 Ill. 534). This proceeding was begun before the injunction was vacated.
   By the Court.—Sedgwick, Ch. J.

The judge of the common pleas who made the injunction order in this case had not a legal power to make it. The validity of the exercise of such a power, if it exist, must be found in some section of the Code of Civil Procedure. It will be necessary to examine only sections 277, 606 and 772. It will be expedient to examine section 772 in the first place. It occurs in title V. with the heading “motions and orders generally.” Section 772 is headed, “What judges may make orders out of court without notice.” It proceeds to declare that where an order in an action may be made by a judge of the court out of the court, and without notice,, and the particular judge is not specially designated by law, it, except it be to stay proceedings after verdict, report or decision, may be made by a justice of the supreme court,or by a judge of a superior city court, within the city where his court is located, or by the county judge of the county where the action is triable, or in which the attorney for the applicant resides. If an injunction order is within the meaning of the clause that has been cited, then the order in this case had validity, not because the judge signing the order was a county judge, but because he was a judge of a superior city court. The clause was not meant to embrace an injunction order. It was a provision that respected orders in general, without a specific reference to any class of orders with peculiar characteristics. The general class of orders was those that might be made by a judge out of court without notice.

It is a familiar rule of statutory construction, that a statute that provides in respect of a particular case, is not repealed by a statute that describes a general class, although the particular case would be verbally within the general terms, unless an intention to repeal is otherwise manifested (Matter Comm’rs Central Park, 50 N. Y. 493 ; Van Denburgh v. Village of Greenbush, 66 Ib. 1 ; People ex rel. Ross v. City of Brooklyn, 69 Ib. 605). The principle is applicable a fortiori, to different sections of one act, the whole of which becomes a law at one time. And therefore, if there be elsewhere in the Code, a special provision as to injunction orders, that special provision controls.

As to orders granting provisional remedies, and that may be made by a judge out of court, without notice, the Code has made special or particular provisions, which it was unnecessary to make if section 773 was meant to be the enactment as to them. By section 556, an order of arrest, except, &c., must be obtained from a judge of the court in which the action is pending, or from any county judge. By section 638, a warrant of attachment may be made by a judge of the court or by any county judge. By section 606, an injunction order may be granted by the court in which the action is brought, or by a judge thereof, or by any county judge. No one can fail to observe that in these several cases the limitation of the powers to grant the orders have been made with some purpose that relates to the character of the remedy. If these special provisions had been placed in section 772 at the end of the general words that have been given, it would at once be seen that there was no inconsistency, and that the special provisions were to be followed according to their own terms. The separation of them by intervening sections, does not make them not to be the law, or prevent the application of the rule of construction that has been adverted to.

It is argued that a part of section 772, and not yet noticed, shows that the intention was that the general language "should refer to injunction orders. Such an order grants a provisional remedy. That part immediately follows what has been quoted, and is, “ Where such an order grants a provisional remedy, it can be vacated only in the manner specially prescribed by law,” &c. The argument is that the words “such an order,” recognize that the general words as to orders before used, embrace orders granting provisional remedies. It is certainly true that orders for provisional remedies may be made by a judge out of court, and it must be supposed that the lawmakers did not lose sight of this when the general words were used. This is not all that needs consideration here. The law-makers also knew that the general words did not exclude the operation of special provisions as to the granting of particular kinds of orders. These special provisions were to be combined with the general provision, and it was in reference to all of them together, as being the law, that the part now under consideration proceeds. Therefore the words “such an order” must not be held to repeal any provision that had been specially made as to certain classes of orders, or, in other words, to affect any provision as to the court or judge authorized to make orders. It was an independent provision, as if made in another section, and meant that where an order that may be made by a judge out of court (which is the meaning of. “ such an order ”), grants a provisional remedy, it can be vacated only, &c.

The construction now given to section 606 gains strength from these words in it: “ except where it is otherwise specially prescribed.” There is a special prescription in section 605. There is no special prescription in section 772, which is in general terms. Therefore, there is almost an explicit declaration that section 606 furnishes the only rule as to the power to make injunction orders.

What is the difference between the respective applications of sections 772 and 606 ? By section 772, other orders than injunction orders may be made by the judges of the supreme court, or of the common pleas, or of a superior court, or by a county judge, with indifference as to the particular court in which the action may be. By section 606, such an order can only be granted by a judge of the Court where the action is, or by that court, or by a county judge. It is not necessary to state the reasons for these varying limitations. It is enough to perceive that the limitations are so marked, that they cannot be supposed to be absent from the intention of the legislature.

The inquiry remains, whether, within the meaning of section 606, a judge of the common pleas is a county judge. A county judge is a specific title used in the constitution and statutes to identify a certain judicial officer, with peculiar powers, and the head of a county court. Section 14, article 6, Constitution of 1846, says there shall be elected in each of the counties, except the city and county of New York, one county judge. He shall hold the county court, &c. Section 15 of the same article, as amended December 9, 1869, continued county courts and county judges by these titles. The Code of Civil Procedure so classifies these courts and officers as courts of common pleas, superior courts, county judges and county courts, in such an exact way, that they cannot be confused, and it must be said that the one is not the other.

It may be argued that a judge of the common pleas has the power of a county judge. No statute to such an effect has been cited. If there were one, it would not avail against a statute, which in respect of a particular class of orders in effect names a judge of the court of common pleas and a county judge, allowing the former to grant the order, if the action be in his court, or if it be not, then by a county judge, or a judge of the court in which the action is.

This, however, by no means exhausts the discriminations of the statute. The following is significant : There are three classes of authorized makers of injunction orders. The system of classification had some ground which calls for respect as much as does the meaning of words. The first class is of courts in which the action may be, the second is of the judges of such courts, the third is of county judges. There is no other class of judges than those of the court where the action is. If a judge who is not a county judge, but is assumed to have the power of a county judge, is for that reason by construction authorized to make the order, not being a judge of the court where the action is, the second class, and its reason, are obliterated.

The subject matter of such an inquiry as the present is in every case, what do the words mean, in the particular act or section where they occur ? It is a rule of general application that legal terms have their legal meaning, unless there be some indication to the contrary. Under these propositions, the cases that have been cited to show that a judge of the common pleas has the power of a county judge, or is a county judge, should be examined.

Morgan’s case (56 N. Y. 629), is not reported in full. The digests give no reference to the decision below. A memorandum only of the case in the court of appeals is made, and the head-note alone gives information as to the decision. It is, “The term ‘county judge,’as employed in the act of 1860, ‘ to secure to creditors, a just division of the estate of debtors who convey to assignees,’ &c. (chap. 348, laws of 1860), and the various acts amendatory (chap. 860, laws of 1867 ; chap. 92, laws of 1879 ; chap. 838, laws of 1872, and chap. 363, laws 1873) includes the judges of the court of common pleas for the city and county of New York, and the jurisdiction conferred by said acts upon the county judge is rightfully exercised by the judges of the said court of common pleas, when the debtor resides in the city of New York.”

The acts, outside of the words to be construed in them, namely, “county court” and “county judge,” provided beyond controversy for the regulation of assignments for benefit of creditors in every county of the state. It would be inconceivable that it was not intended to apply to the county of New York. The judicial agents for the enforcement of the acts, were described as county court and county judge. The particular question was, when the acts applied to all of the counties of the state, what did they mean by county judge as applied to the county of New York, when there was no county judge proper ? The conclusion was that from the history of the common pleas and its former jurisdiction and nomenclature, the act meant that court, for the purposes of the enforcement of the act in the county of New York. This did not involve that in the county of New York, the common pleas or its judges, acted because they had the power of a county court in a proper sense, or were county judges proper, but they acted as a court of common pleas, or a judge of it, proprio vigore. Such a result was inevitable, after it had been held that the face of the acts showed that the words county judge were used, not in a restricted legal and technical way, but in a general sense.

When the acts referred to were repealed by section 28, chapter 466, laws of 1877, it was deemed prudent to enact, by section 24, that a judge of the common pleas of the city óf New York, “may exercise all the powers of a county judge for said county for the purposes of this act.”

In Wood v. Kelly (2 Hilt. 337), the only remark that could apply to the subject, was made by a single judge as an additional reason to those given by another judge for affirming an order allowing an amendment. There is no doubt that the remark was correct. It, however, only applied to the court possessing the power of a county court, and not to any judge of either court. It was based upon section 6 of the laws of 1854, chapter 198, entitled An act in relation to the court of common pleas for the city and county of New York.” Section 6 was repealed by chapter 417 of the laws of 1877.

Lang v. Brown (6 Hun, 256), is cited. It states that judges of the common pleas are county judges on the authority of Matter of Morgan (56 N. Y. 629). We have seen that that case only declares that within the meaning of the acts then involved, county judges indicated judges of the common pleas. To maintain the proposition under the Code of Civil Procedure would be to disregard fundamental distinctions very carefully made in it. The statute before the court was a section of the revised statutes. The opinion there says that by section 27, laws of 1847, p. 638 (the judiciary act) county judges are clothed with the powers that a judge of the court of common pleas, being, &c., could exercise. This does not show that a judge of the common pleas is clothed with the powers of a county judge. The section could not be read by substituting for county, judge, a judge of common pleas, without considering it the equivalent of an enactment that a judge of the common pleas is clothed with the powers of a judge of the common pleas. In fact, the section has been repealed by chapter 417 of the laws of 1877.

In People ex rel. Ireland v. Donohue (15 Hun, 446), it was held that under section 556 of the Code of Civil Procedure,—which provides that an order of arrest may be granted by a judge of the court where the action is brought, or by the county judge,—a judge of the common pleas is a county judge. The making of the order was not said to be valid under section 772, and no particular examination of the question was made, but the decision was placed upon Matter of Morgan (56 N. Y. 629). It is therefore to be deemed but a reiteration of the ruling in that case, the effect of which has been examined.

Nor does section 277 support the order. That provides that in an action or special proceeding, brought in a superior city court, an order may be made without notice by the county judge of the county where the court is situated, or of the county where the attorney for the applicant resides, in a case where a judge of the superior city court might make the same out of court. It seems to be clear that the judge who made the order is not the county judge of this county, nor did he make it as such. It would seem only necessary to say that the section refers to the power of the county judge, and not to the power of a superior city court judge.

As the making of the order was not authorized by law, the appellant was not bound to obey it, and was not in contempt for disregarding it.

The order appealed from should be reversed, and an order entered dismissing all proceedings, with costs.

O’Gorman, J., concurred.

Ingraham, J.—[Concurring in result.]

The action in which the injunction order hereinafter mentioned was granted, was commenced by the service of the summons on the defendants. No complaint was served or presented to the court.

It appears, however, from the affidavit on which the injunction was granted, that the action was brought for the purpose of preventing the appointment, by the mayor and board of aldermen of the city of New York, of a counsel to the corporation, the head of the law department of the said city, and of a commissioner of public works of said city, on the ground that the appointment was about to be made in pursuance of a corrupt combination between the defendants in the said action and others.

On presentation to a judge of the court of common j>leas of the summons in the action, and certain affidavits and an undertaking, an order was granted, providing that the defendant Edson, the mayor of the city of New York, be enjoined, restrained and commanded to desist from appointing, nominating or confirming the nomination of any person to the office of commissioner of public works, or of counsel to the corporation, of and for the said city of Yew York, until the entry and service of an order therein, changing or modifying the force of the said order.

By section 21 of the charter of 1830 (Laws 1830, p. 125), it was provided that the executive business of the corporation of Yew York should thereafter be performed by distinct departments, which it should be the duty of the common council to re-organize and appoint for that purpose. In pursuance of the direction contained in this section, ordinances were adopted by the common council creating the street commissioners’ department, and the office of attorney and counsel to the corporation, and prescribing the duties of the officers thereof, and by the revision of the ordinance of 1845, the said departments were continued and the duty of the heads of the departments defined.

The powers and duties of the street commissioner under the revised ordinance of 1845, were, by section 316 of chapter 410, of the acts of 1882, known as the consolidation act, given to the department of public works, and by section 38 of the said act, the head of the department of public works was called the commissioner of public works, and was to hold office for four years, and until his successor shall be appointed and qualified.

By the same act, it was provided that the head of the law department should be called counsel to the corporation, and the duties performed by the counsel and attorney to the common council under the ordinance of the common council before mentioned were given to the law department.

By section 106 of the same act, it was provided that the mayor sliall nominate and, by and with the consent of the board of aldermen, appoint the heads of departments and all commissioners.

By the constitution of 1846, which took effect on January 1, 1841, it was provided by section 2, article 10, that “all city, town and village officers, whose election or appointment is not provided for by this constitution, shall be elected by the electors of such cities, towns and vil¡ages or of some division .thereof, or appointed by such authorities thereof as the legislature shall designate for that purpose.” At the time this provision went into effect, there were in existence officers of the corporation of the city of New York, performing most of the duties now performed by the commissioner of public works and the counsel to the corporation.

The provision of section 2, of article 10, of the constitution, applied to such officers as were in existence at the time of the adoption of the constitution (Devoy v. Mayor, &c., 36 N. Y. 449 ; People v. Draper, 15 Ib. 532; People v. Albertson, 55 Ib. 50).

If the legislature had provided that the commissioner of public works and counsel to the corporation should be elected by the people, it could not be said that the people, in voting for such an officer, acted on behalf of the corporation of the city of New York. If, in the absence of the constitutional provision, the legislature had created the office of commissioner of public works, and either appointed an individual to fill that office, or authorized the governor to appoint the officer, it could not be said that the legislature or governor, in making the appointment, acted on behalf of the municipal corporation ; and yet the act of appointment would be the same.

' It appeai-s, therefore, that the mayor of New York, in appointing the commissioner of public works and the counsel to the corporation, acted not on behalf of the municipal corporation, but under the authority conferred on him by the act of the legislature designating him as the officer to carry into effect the provisions of the constitution.

The power of a court of equity to control the acts of an executive officer was early presented to the supreme court of the United States in the case of Marbury v. Madison (1 Cranch, 137), and Chief Justice Marshall, in delivering the opinion of the court in that case, limits the power of the court to control an officer of the government to such duties as are merely ministerial and involve no exercise of discretion. In discussing this question, he says : “ It is not wonderful that in such case as this, the assertion by an individual of his legal claims in a court of justice, to which claims it is the duty of that court to attend, should, at first view, be considered by some as an attempt to intrude into the cabinet and intermeddle with the prerogatives of the executive. It is scarcely necessary for the court to disclaim all pretensions to such jurisdiction. An extravagance so absurd and excessive could not have been entertained for a moment. The province of the court is solely to decide on the rights of individuals, not to inquire how the executive or executive officers perform duties in which they have a discretion. Questions in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.”

In the case of Decauter v. Spaulding (14 Peters, 515), Chief Justice Taney, in delivering the opinion of the court, says : “ The interference of a court with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief, and we are quite satisfied that no such power was ever intended to be given to them, . . . and in such a case (one involving judgment and discretion), the circuit court had no right by mandamus to control his judgment and guide him in the discretion which the law had confided to him. We are, therefore, of the opinion that the court below was not authorized by law to issue the mandamus, and committed no error in refusing it, and as we have no jurisdiction of the acts of the secretary in this respect, we forbear to express any opinion of the construction of the legislation in question.”

In Gaines v. Thompson (1 Wall. 341), which was an action for an injunction to restrain the secretary of the interior and the commissioner of the land-office from canceling an entry of certain lands in Arkansas, in which the plaintiff and others claimed an equitable right, the supreme court of the United States, on the authority of the cases above cited, held that a public officer to whom public duties are confided by law, is not subject to the control of the court in the exercise of the judgment and discretion which the law reposes in him as a part of his official functions. Certain powers and duties are confided to those officers, and to them alone, and, however the court, in ascertaining the rights of parties in suits properly before them, may pass upon the legality of their acts after the matter has once passed from their control, there exists no power in the court by any process to act upon the officer so as to interfere with the exercise of that judgment, while the matter is properly before' him for action. The reason for this is, that the law reposes this discretion in him for that occasion, and not in the courts. The doctrine is therefore as applicable to the right of injunction as it is to the right of mandamus.

The principle discussed in the foregoing cases is one of power, and in all the cases that I have examined in which this question has been discussed, the courts have refused to grant such relief, on the ground of the want of power to interfere in any way, or that the court had no jurisdiction over such an officer, and in no case has the power .of the court to interfere been admitted.

The same principle has been recognized by the court of appeals of this state. In the case of People v. Canal Board (55 N. Y. 390), the court says, “ to the extent that public officers and public bodies are trustees, either of franchises or property for the benefit of the public, they are amenable to the jurisdiction of courts of equity in the administration of such trusts, at the suit of the people, if the people of the state at large are the cestuis que trust, or of the particular municipality interested, or of individuals having a special interest in the execution of the trusts, or in preventing the acts sought to be enjoined. . .” A court of equity exercises its peculiar jurisdiction over public officers, to control their action, only to prevent a breach of trust affecting public franchises or some illegal act under color or claim of right affecting injuriously the property rights of individuals. A court of equity has, as such, no supervisory power or jurisdiction over public officials or public bodies, and only takes cognizance of actions against or concerning them when a case is made, coming within one of the acknowledged heads of equity jurisdiction.”

In the case of People v. Sturtevant (9 N. Y. 263), relied on by the relator, the injunction restrained the board of aldermen from passing a resolution authorizing a railroad in Broadway. The court held, that the act passing the resolution was in the nature of a grant, and it was alleged there, that to carry out the grant would authorize a public nuisance ; that a court of equity had jurisdiction in respect to public nuisances, or at any rate the question whether or not the act was an act of municipal legislation, was one that must be determined by the court; and that the court had jurisdiction of the parties to the action and of the subject matter of the action, and the injunction order was not void.

In People v. Dwyer (90 N. Y. 402), the court said, “ whether the act sought to be enjoined was, or was not, of a legislative character, was a judicial question to be disposed of by the court acting upon the facts, and it could prohibit action until it could investigate and finally decide the question.”

In each of the last two cases, facts were alleged tending to show that the defendants were, on behalf of the municipal corporation, about to do an act that would be illegal—in the People v. Sturtevant, to authorize a nuisance, and in People v. Dwyer, to commit a breach of trust; —but in the case at bar, no question was presented as to the character of the act sought to be enjoined. Ho right of property was involved, no damage to the plaintiff was alleged, no fact was alleged to bring the action within any of the heads of equity jurisdiction. The fact was alleged that an officer, on whom the constitution and the law had conferred power to do an act resting entirely within his discretion, had acted, or was about to act, from improper motives.

The presentation of this fqct gave the court no jurisdiction to act. The power to be exercised by the respondent was, as we have seen, one of the executive powers of •the state,- vested by the constitution -and law in him. That power is entirely distinct from the judicial power vested, in the courts. To hold that the judicial body could inquire into the motives of the executive in the exercise of the power conferred on him, and control him in the exercise of such power, would be to transfer the power from the executive in whom it is vested, to the judicial body.

On the presentation to the court of an affidavit that the governor of the state was about to make an appointment from corrupt or other illegal motives, would it be claimed for a moment that the court would have power- to enjoin him from making such an appointment ?■ Yet the act is not essentially different in that case, from the act of the mayor of the city of New York in the case at bar. Such acts are executive acts, vested by the organic law of the state in the officer appointed to perform them, and both are beyond the jurisdiction, power and control of the judicial power.

The relator claims that chapter 531, of the laws of 1881, gave the court jurisdiction to grant the injunction in this action. Section 1 of that act provides that, all officers, agents, commissioners and other persons acting for and on behalf of any county, town, village or municipal corporation in this state, and each and every one of them, may be prosecuted, and an action or actions may be maintained against them to prevent any illegal official act on the part of such officers,” &c. The actions authorized by this act, are limited to those against officers acting on behalf of a “county, town, village or municipal corporation.” As before stated, the respondent, in making the appointments sought to be enjoined, did not act on behalf of the municipal corporation. No authority for the exercise of the jurisdiction claimed can therefore be claimed in the act of 1881.

I am of the opinion, therefore, that the court having no jurisdiction of the subject matter of the action, had no power to grant the injunction. The order was void, and the respondent was not in contempt.

The order appealed from should be reversed, with §10 costs and disbursements, and the motion denied, with costs.


source: Caselaw Access Project

author: By the Court.—O’Gorman, J.

license: Public Domain

text:
    HERMAN FUCHS, Respondent, v. THEODORE E. KOERNER, Appellant.

      Master and servant.—Employee discharged without cause—duty as to accepting other employment.

    An employee discharged without cause is only bound to accept suitable employment similar in kind.
    Accordingly held, that an employment to sell fancy boxes on commission, is not similar in kind to an employment in the business of manufacturing essential oils and essences at a fixed salary.
    Before Sedgwick, Ch. J., O’Gorman and Ingraham, JJ.

      Decided April 13, 1885.
    Appeal from a judgment for §871.72 in favor of the plaintiff, for "damages and costs, entered on verdict of a jury.
    The facts sufficiently appear in the opinion.

      John D. Ahrens, attorney, and of counsel for appellant.

      Simonson & Meyer, attorneys, and of counsel for respondent.
   By the Court.—O’Gorman, J.

The plaintiff brought action against the defendant for breach of contract to hire the plaintiff, up to February 6, 1885, at a yearly salary of §1,800, payable weekly, in the business of manufacturing essential oils and essences. Plaintiff was discharged, without sufficient cause, on June 6, 1884, and sued for damages. The amount of wages he would have earned up to February 6, 1885, was $787.50.

Plaintiff, however, was bound to take other suitable employment, if he could get it; and it was in evidence that he was offered by the defendant, an employment, to sell fancy boxes for one Loder, on a commission of ten per cent, on the sales. This employment he refused.

The learned trial judge refused the request of defendant’s counsel, to charge the jury that they should deduct from the said amount which plaintiff ■ would be entitled to as damages, the amount he might have earned, and defendant also excepted to the charge that the plaintiff was bound to seek only employment of the same kind, and was not bound to accept the terms offered him by the defendant.

There was no error in these rulings. The plaintiff, in cases such as that at bar, is bound to reduce the damage by accepting, and holding himself ready to accept suitable employment, similar in kind to that in which he contracted to give his services to defendant. He is not bound to take any other and different employment which he maybe offered (Howard v. Daly, 61 N. Y. 369 ; Costigan v. Mohawk, &c. R. R., 2 Den. 609 ; Shannon v. Comstock, 21 Wend. 457).

The judgment must be affirmed, with costs.

Sedgwick, Oh. J., and Ingraham, J., concurred.


author: By the Court.—Ingraham, J.

text:
    WILLIAM PERZEL, Appellant, v. SINCLAIR TOUSEY, E. H. SPOONER and SINCLAIR TOUSEY, as President of the American News Co., Respondents.

      Libel and slander—privilege of attorney and party in giving bill of particulars.—Bill of particulars—statements in become relevant and pertinent, as to question of privilege.

    Prior to this action, an action of libel was brought against defendant Tousey, founded on a newspaper article, of and concerning the plaintiff therein (a woman), charging, among other things, that some one had been written to, to inquire if her children were illegitimate; and that he was instructed chiefly to ascertain if her character was decent; also “they” cast the stigma of bastardy on two innocent little children, and that she herself had become a certain man’s mistress. Defendant Tousey, in his answer in that action, which was signed by defendant Spooner as his attorney, set up for a defense and in mitigation of damages, that the plaintiff therein was of bad character as to chastity, had frequented and been an inmate of a house of prostitution, and had lived with various men as a mistress. On motion of the plaintiff therein, and against the opposition of the defendant Tousey, he was ordered to serve on plaintiff a bill of particulars specifying the name or names of the individual or individuals whose mistress plaintiff was in the answer alleged to have been, with the date or dates of such alleged facts. In obedience to this order, a bill of particulars verified by defendant Tousey and signed by defendant Spooner, setting forth, among other individuals, that she became the mistress of this plaintiff in this action, in 1880, and was and continued, etc. This action for libel was brought, based on the allegation in the bill of particulars, and the facts above stated were set forth in the complaint.

      Held, that malice could not be presumed from the compliance with the order for a bill of particulars ; and that that order was an adjudication in the original action that the defense there interposed, of which the particulars were ordered, was relevant; and that, consequently, the allegations in the bill of particulars were privileged.
    Before Sedgwick, Oh. J., O’G-orman and Ingraham, JJ.

      Decided April 13, 1885.
    Appeal from a judgment entered on dismissal of the complaint at trial term on the pleadings.

      The facts appear in the opinion.

      Stafford, Graff & Roman, attorneys, and Marshall P. Stafford, of counsel for appellant, argued:
    I. A libel is not privileged by the mere fact that a legal pleading was the medium of publication. Libelous words in a legal pleading are not privileged unless they are material and pertinent to questions involved in the suit (Marsh v. Ellsworth, 50 N. Y. 311 ; Gilbert v. People, 1 Den. 43 ; Ring v. Wheeler, 7 Cow. 730 ; Hastings v. Lusk, 22 Wend. 410).
    II. The language complained of here was not material or pertinent as a plea in justification of the libel complained in the original suit. Six things are indispensably requisite to constitute a plea in justification of a libel. (1) Publication of the libel by the defendant must be admitted in direct and unqualified terms (Aníbal v. Hunter, 6 How. 255 ; Sayles v. Wooden, Ib. 84 ; Lewis v. Kendall, Ib. 59 ; Moak’s Van Santvoord’s Pl. [3d Ed.] 572). (2) There must be a specific averment that the matters are alleged as justification. Every allegation must be taken as made in bar of the action, unless it is expressly stated to be alleged as justification or in mitigation of damages (Fink v. Justh, 14 Abb. N. S. 110 ; Fry v. Bennett, 5 Sandf. 75 ; Mathews v. Beach, Ib. 256 ; Hagar v. Tibbets, 2 Abb. N. S. 102 ; Ayres v. Covill, 18 Barb. 260 ; Newman v. Otto, 4 Sandf. 668 ; Meyer v. Schultz, Ib. 664 ; Odgers on Libel. 117 ; Townsend on S. & L. § 354). (3) The justification must be as broad and as extensive as the libel. Anything short of this will not do. There are no degrees of justification. It must be the whole or nothing (Root v. King, 7 Cow. 619 ; Fry v. Bennett, 5 Sandf. 69 ; Odgers on Libel, 177; Townsend S. & L. §§ 212, 355, 359). (4) It must cover and consist of the precise charge made in the libel. Something near it, or something of a similar nature, will not do (Barthelemy v. The People, 2 Hill, 257 ; Andrews v. Vanduzer, 11 Johns. 42 ; Odgers on Libel, 177-8 ; Townsend S. & L. §§ 212, 355). (5) The facts must be so stated as to show that the charge is true. An averment in general terms that it is true will not suffice. Conculsions, inferences, rumors or arguments will not do. There must be such a clear, direct, plain statement of facts as to make it manifest that if the statements are true the libel was justified (Fink v. Justh, 10 Abb. N. S. 110 ; Annibal v. Hunter, 6 How. 255 ; Sayles v. Wooden, Ib. 84 ; Wachter v. Quenzer, 29 N. Y. 547 ; Billings v. Walter, 28 How. 97 ; Tilson v. Clark, 45 Barb. 178 ; Maretzek v. Cauldwell, 2 Rob. 715 ; Townsend S. & L. § 357 ; Ogders on Libel, 177-8). (6) It must appear that the justifying facts were known to the defendant at the time of publishing the libel (Bush v. Prosser, 11 N. Y. 360 ; Fry v. Bennett, 5 Sandf. 69 ; Root v. King, 7 Cow. 619). These rules are not changed by the provisions (Code, § 535), as to mitigation and justification (Bush v. Prosser, 11 N. Y. 349 ; Bisby v. Shaw, 12 Ib. 66); and as to the effect of attempting and failing to prove justification (Spencer v. Keeler, 51 N. Y. 535 ; Distin v. Rose, 69 Ib. 127).
    There is nothing in the original suit that meets a single one of these six indispensable requisites of a plea in justification of the libel complained of in that suit.
    III. The language complained of here was not material or pertinent in mitigation of damages in the action in which they were used. There are but two general ways in winch a defendant in a libel suit can possibly mitigate damages. One by showing there was no notice, because facts known at the time of publishing the libel induced a belief that the charge was probably true. The other by showing that plaintiff’s general reputation on the subject to which the libel relates was bad. (a.) The words complained of here could not be material or pertinent on the question of malice to reduce punitive damages ; because there is no allegation that the facts which they charge were known at the time of publishing the original libel, and so induced a belief that it was true (Bush v. Prosser, 11 N. Y. 360). (6.) The words here complained of could not be material or pertinent in mitigation of damages to reputation. Damage to reputation can be mitigated only by proving that .the plaintiff’s reputation was bad in the particular respect to which the libel pointed (Root v. King, 7 Cow. 629). But bad reputation, in general or in any particular respect, can be proved only in general terms, that is, by asking what is the general reputation as to any trait or moral quality. Specific acts of misconduct can never be proved to establish bad reputation (1 Greenleaf’s Ev. §§ 25, 27, 55, 424-426 ; Odgers on Libel, 305 ; Hatfield v. Lasher, 81 N. Y. 250). The reason of this rule is that the question or inquiry is, not as to character in fact, but as to reputation. The two things are entirely distinct.
    IV. The language here complained of was wholly impertinent and immaterial to any issue of the case in which it was uttered. By the authorities cited under the first point, therefore, the libelous allegation of which this plaintiff complains was not privileged, and all who were concerned in its publication are liable to an action therefor.
    V. The fact that the libelous allegation is found in a bill of particulars served under an order of court is immaterial. (a.) The order was an alternative one. It did not compel defendants to serve a bill of particulars. They were at liberty not to serve it, and a failure to do so would only have precluded them from giving proof in support of an allegation which was itself immaterial. The order directed particulars of the allegation that plaintiff had been the mistress of “various men.” This allegation of “various men” was itself totally irrelevant for the same reasons that the language complained of was irrelevant. It was not pertinent as a plea either in justification or mitigation of the charge that the plaintiff “ had become a certain man’s mistress.” The order of the court was, in effect, that if defendants desired to attempt to prove this immaterial allegation, they must furnish a bill of particulars. Parties to an action must always take the responsibility of their own pleadings. They cannot shift that responsibility upon the court, which always presumes that the allegations to be made under its order will be pertinent and material, and not recklessly libelous. Even if an order of court could shield a libelous allegation under any circumstances, an order which leaves a party the alternative of making the allegation or not, cannot have such effect. The responsibility of exercising the option rests upon the party who selects. (b.) In asking that defendants b¿ compelled to give particulars of the charge as to “ various men ” or else be precluded from giving proof under it, plaintiff, in the original action, proceeded in the regular and only proper way for the protection of her rights. The step was designed either to have the allegation abandoned as irrelevant, or else get facts which would enable plaintiff to know what it meant, and prepare to meet it. This is the practice allowed and commended by this court (Dowdney v. Volkening, 37 Super. Ct 313).

      E. H, Spooner, attorney, and William Fullerton, of counsel for respondents, argued:
    I. If the allegation in the bill of particulars, on which this present action is brought, was properly pleaded, and was material and pertinent in said former action, then it was privileged, and the complaint herein was properly dismissed (Carr v. Selden, 4 N. Y. 91; Marsh v. Elsworth, 1 Sweeny, 589 ; affirmed, 50 N. Y. 310 ; White v. Carroll, 42 Ib. 16).
    II. The allegation, which is the subject of this action, was also pertinent and material, and well pleaded in mitigation or reduction of damages as to every part of the original libel which related to plaintiff’s chastity (Wharton’s Law of Ev. § 51, vol. 1; Bush v. Prosser, 11 N. Y. 347 ; Kniffin v. McConnell, 30 Ib. 285 ; Verny v. Watkins, 7 Cox & P. 308 ; Wendell v. Edwards, 25 Hun, 498 ; Johnson v. Calkins, 1 John. Cas. 116 ; Willard v. Stone, 7 Cow. 22; Palmer v. Andrews, 7 Wend. 142; Boynton v. Kellogg, 3 Mass. 189 ; § 536 Code). It is certain that the words “or otherwise” inserted in section 536 Code Civil Procedure, on changing section 165 of the Code, were introduced for a purpose, and in seeking therefor, we find that a rational meaning and purpose can only be found on the theory that the legislature used the word “ mitigate ” in the phrase “tending to mitigate” in a limited sense, and intended thereby to cover such defenses only as bear on the question of defendant’s malice; and intended by the words “or otherwise” to include and authorize all other partial defenses which will have the effect to reduce damages ; and among which are included the partial defense that plaintiff’s general character is bad ; the partial defenses in cases for breach of promise of marriage and for a seduction, approved by the cases before cited, and such a partial defense as was made by the defendant in the original action of Prescott v. The American News Company, and on which this present action is brought.
    III. An action of libel will only lie on a pleading, because of gross and palpable errors therein. If there be any doubt as to the correctness of the views presented under the first and second points of this brief, then defendants rely with entire confidence on the doctrine laid down in the case of Warner v. Paine (2Sand. 195). In Bradner v. Faulkner (93 N. Y. 515), it was held that “the rules by which the sufficiency of pleading is ordinarily determined,—i. e., relevancy and materiality, may not be strictly applied to allegations in an answer of facts by way of mitigation,” and that “the borderline between such facts as are properly receivable in mitigation, and those which are inadmissible for such purposes cannot with accuracy be defined preliminarily to the trial.” As to what would have been such a “gross and palpable ” error in defendant’s pleading in the original action that a suit for libel would lie thereon, defendants herein conceive that if the third defense in that action had charged the plaintiff Prescott with being guilty of larceny, or had charged her with any other fault or crime, having no relation to the subject of her chastity, such charges might have been deemed gross and palpable errors in pleading. But defendant in the original action made no such charges, either in the third defense, or in the supplemental answer, or in the bill of particulars.
    IV. It is not necessary that the facts contained in all partial defenses should be known to defendant at the time of the publication of the libel. That is the case only where mitigation is asked for upon facts showing an absence of malice on the part of defendant; as was the case in Bush v. Prosser ( 11 N. Y. 347), and in Hartfield v. Lasher (81 Ib. 216). But the partial defenses in mitigation, which a defendant may make, are not confined to such as have the effect to show an absence of malice on his part. There are several which have no such effect, among which may be mentioned the partial defense that plaintiff’s general character is bad, the partial defense in actions for breach of promise of marriage, and for seduction, that plaintiff has been guilty of specific acts of unchastity, and defendants claim that among them is also included the partial defense in mitigation of damages, that defendant, in the original action of Prescott v. Tousey, made, namely, that plaintiff was guilty of various acts of unchastity. But the allegations were pleaded for the purpose of mitigating or reducing plaintiff’s damages by showing that she was an unchaste woman, and, therefore, not entitled to the same damages in an action brought by her on charges affecting her chastity, that she would be if she were virtuous ; the authority therefor being the words, “ or otherwise ” in section 536 of the Code, and the cases above cited. It is obvious that defendant’s right to plead such facts, for the purpose of reducing damages, can no more depend on the facts having been known to them at the time of the publication of the libel, than would their right to plead plaintiff’s general bad character for the same purpose depend on their having known the same to be bad at the time of the publication of the libel.
    V. If the allegation in the third defense in the original action, that “she lived with various men in the city of Mew York and elsewhere as a mistress,” was not material, yet plaintiff, by obtaining a bill of particulars of the same, made both it and the bill of particulars material. It often happens in practice that an immaterial allegation is made material by the manner in which the opposite party to the action deals with it. The interpretation of the - plaintiff’s act in moving for the bill of particulars was, that the original allegation in the third defense was good as far as it went, but that it did not go far enough. The result of this request or application to the court was the order compelling the defendant to put into his bill of particulars the very allegation now sued on in this present action. And defendant had a right to put such allegation into his bill of particulars as being material and proper ; plaintiff having elected to treat as material the allegation in the third defense, of which the allegation in the bill of particulars was an amplification—it being necessary to serve the allegation in the bill of particulars that defendant might preserve, under the order of the court, the right to litigate the said allegation in the third defense. The allegation in the answer having been treated by the parties to the action as relevant and material, it does not he in the mouth of - a stranger to the action, such as the plaintiff in this action was, to allege the contrary.
   By the Court.—Ingraham, J.

The complaint in this action alleges :—

That one Marie Prescott commenced an action against the defendant, Sinclair Tousey, as president of the American Mews Company, for libel, founded on a publication in a certain newspaper, and set forth the publication, the material portion of which, so far as this action is concerned, is as follows : _“He had written an article for the D. News, and he then showed it to her. She said it would be fearfully damaging to you. She implored him not to send the article. He said, that if you hadn’t some friend who would stop it, you -were a ruined woman, for he had been already written to, to inquire if your children were illegitimate, and what he was instructed chiefly to ascertain was if your character was decent. No friend with the needful coming forward, they cast the uneradicable stigma of bastardy on two innocent and helpless little children, left broken-hearted the actress mother, and recorded of the woman herself, who was then struggling hard to support all three, that she had become a certain man’s mistress.”

That in the answer to the complaint in that action the defendant alleged as follows : Third defense. For a further and third defense to said amended complaint, and in mitigation of damages, the defendant alleges on information and belief that at the time of the publication in said newspaper, called Nym Crinkle, of the article contained in said amended complaint, plaintiff was, and for a long time prior thereto had been, a woman of bad character as ■ to chastity, and was an unchaste woman, and had frequented and been an inmate of a house of prostitution in the city of New York and elsewhere, and that she had lived with various men in the city of New York and elsewhere as a mistress.”

That subsequently, on motion of the plaintiff in said action, and on opposition of the defendant, an order was entered, whereby it was ordered that within five days after service of this order upon the defendant, said defendant serve upon the plaintiff a bill of particulars of a part of the third defense contained in the defendant’s answer herein, specifying .... the name or names of the individual or individuals whose mistress plaintiff is therein alleged to have been, together with the date or dates of such alleged fact.”

That in compliance with said order, the defendant in said action served a bill of particulars, wherein it is alleged as follows : That plaintiff became the mistress of William Perzel in the year 1880, and was and continued to be his mistress during the months of October, November and December,-1880, and ever since has continued to be and now is his mistress.”

The original action was founded on the article published in 15 Nym Crinkle,” a newspaper published in the city of New York, of the issue of August 6, 1881. The answer and the bill of particulars in said action, were signed by the defendant Spooner as attorney for the defendants therein, and verified by the defendant Tousey.

This action is brought to recover for a libel upon the plaintiff contained in the statement of the bill of particulars above set forth. The case came on for trial before a jury, and on the opening of the case on motion of the defendant, the court dismissed the complaint, and from the judgment entered on such dismissal, plaintiff appeals.

The law is well settled that a party, and his attorney and counsel, conducting a judicial proceeding are privileged in respect to words or writing used in the course of such proceeding reflecting injuriously on others, when such words and writing are material and pertinent to the question involved, and that within such limits the protection is complete, irrespective of the motive with which they are used (Marshal v. Elsworth, 50 N. Y. 309); and malice cannot be predicated on what is so stated or written.

Where the matter is put forth by a party or his attorney or counsel, in the course of the proceeding, which may possibly be pertinent, the court should not and will not feel disposed so to regard it as to deprive its author of his privilege and protection. Where it is fairly debatable whether the matter is relevant, we are inclined to give the counsel or the party using the words the benefit of the doubt which may fairly existas to'its pertinency ” (Warner v. Paine, 2 Sandf. 201). And where a party or his counsel in the course of a judicial proceeding, used the words complained of in good faith, supposing them to be pertinent and without malice or any intention of slandering or libeling the plaintiff, the defendant is protected (Warner v. Paine, supra; Hastings v. Lusks, 22 Wend. 409).

In order, therefore, to sustain the dismissal of the complaint in this action, it must appear from the complaint itself that the words complained of were written in the course of a judicial proceeding, and were relevant and pertinent to the matter in question, or that the defendant used them in good faith, supposing them to be pertinent and without malice.

That the words complained of were used" in the course of a judicial proceeding is admitted, but it is claimed by the plaintiff that they were not pertinent to the controversy.

■ The third defense in the original answer does not attempt to allege particular facts. It says that the plaintiff was, and for a long time prior thereto had been, a woman of bad character as to chastity, and that she had lived with various men in the city of Hew York and elsewhere as a mistress. The defendant for his defense rested with that allegation. He did not allege in his answer that the plaintiff in that action was the mistress of the plaintiff here, or any particular fact that could be relied on upon the trial to mitigate the damages.

As the allegation in the original answer stood, plaintiff in this action would have suffered no damage, and under the rule laid down in Hatfield v. Lasher (81 N. Y. 246), particular facts could not have been proven, at any rate "without evidence that such facts were known to the defendant at the time of the publication of the original libel.

The plaintiff in that action, however, on application to the court, and notwithstanding the opposition of the defendant, obtained an order compelling the defendant to specify the name or names of the individual or individuals whose mistress plaintiff is alleged in the answer to have been. For that order the defendants are not responsible. It was made against their objection, and they were bound to comply with its terms, and for a failure to comply therewith the court had power to strike out the answer (Gross v. Clark, 87 N. Y. 272).

Can words written which are necessary to comply with the terms of such an order be malicious, or can malice be predicted of what is so written ? I think not. The service of the bill of particulars was not for the benefit of the defendant in that action. It did not aid his defense, but was required by the court for the protection of the plaintiff there. It was given under compulsion, and every presumption of malice which the law implies from written or spoken words, is rebutted by the existence of such facts.

Mor can the allegation in the bill of particulars be considered irrelevant. The order granting the bill of particulars was an adjudication in that suit that the defense was relevant, and that for plaintiff’s protection the particulars of the defense must be specified.

Under all the circumstances, I am of the opinion that the allegations of the bill of particulars were privileged, and the judgment should be affirmed, with costs.

O’Gorman, J., concurred.


author: Freedman, J.

text:
    LEANDER K. BINGHAM, et al., v. OSCAR J. MAIGNE.

      Hestraint of trade—limit as to space, etc.—contract restraining journeyman or apprentice from practice of trade.

    The plaintiffs, who were manufacturers of printers’ rollers and composition, bought out a firm in the same business, who, through the combined skill of defendant and a fellow-workman, had become important rivals and competitors, and at the same time plaintiffs induced the competing firm to get from each of these workmen an agreement, stated to be on a good and valuable consideration, not to exercise their trade thereafter “ either in the city of New York or within a radius of 250 miles therefrom, so long as plaintiffs, their survivors or successors, shall continue such business or manufacture.” In this action to restrain defendant, one of said workmen, from violating the agreement,

      Held, That though a contract in partial restraint of trade, restricting it within certain reasonable limits or times, and confining it to particular persons, is valid if founded upon a good and valuable consideration, the contract in this case is clearly unreasonable as to space, and is also

      against the spirit, if not the letter, of the state statute, making it unlawful to accept from any journeyman or apprentice any contract that he shall not set up his trade in any particular place.
    Before Freedman, J., at Special Term.

      Decided May 2, 1885.
    Motion for a dismissal of the complaint after trial at special term.
    The action was for an injunction.
    The facts appear in the opinion.

      W. B. Spooner, for plaintiffs.

      E. B. Cowles, for defendant.
   Freedman, J.

On or about August Vi, 1882, the plaintiff’s firm, Bingham, Daley & O’Hara, manufacturers of printers’ rollers and composition, agreed to purchase, and did purchase, the business of a rival firm, named W. H. H. Rogers & Co., inclusive of the stock, machinery, assets, contracts and good-will of the last named business. One of the terms of the purchase was that Rogers & Co. should procure the defendant, one of their employees, and as such having knowledge of some secrets relating to, and possessing skill in the manufacture of printers’ rollers and composition, to execute, and the said defendant did execute to the plaintiffs an agreement, whereby he bound himself, that he would “ not engage, directly or indirectly, as principal, agent or employee, or in any capacity, either alone or in connection with any person or persons, individually, or in any firm, association or corporation, or in any manner have to do with the business or manufacture of printers’ rollers and composition, or in any wise assist, support or promote any other person or persons, firm, association or corporation in such business or manufacture, or allow such business or manufacture to be in any wise carried on, in or in connection with any establishment, which I may have to do with and be able to control, either in the city of New York, or at any point within a radius of two hundred and fifty miles therefrom, so long as said Bingham, Daley & O’Hara, their survivor, survivors or successors, shall continue in such business or manufacture.” The agreement expressed the receipt of a “ good, valuable and sufficient consideration ” from Rogers & Co., and the receipt of one dollar from the plaintiffs.

The action is brought to restrain the defendant from violating the said agreement. All claim for damages having been waived, and there being no controversy as to the facts as stated, the right of the plaintiffs to injunctive relief depends upon the validity of the agreement sought to be enforced, and the presentation of a sufficient equity calling for its enforcement.

The defendant denies the existence of a sufficient equity, and insists that the agreement is invalid (1), because, upon its face, it is in restraint of trade ; and (2), because, in substance, it is against the statute law of this state.

At common law, persons competent to contract are free to make their contracts to suit themselves, and the law does not restrict them except to prevent injury to the public. But any contract, although not expressly prohibited by positive law, which, in its operation, would injure the public, or which contravenes any established interests of society, or conflicts with the morals of the times, is void. The promotion of the public welfare is the first consideration of the law. That contracts in restraint of trade, which embrace the entire kingdom or state, are void, is a doctrine coeval with the common law. It is said to have sprung from the English law of apprenticeship (2 Parsons Contr. 7th ed. 751). It was also a principle of the Roman law (Puff. lib. 5, c. 2, §§ 3, 21 H. VII. 20, cited in Mitchel v. Reynolds, 1 Smith's L. C. 709 ; S. C., 1 P. Wms. 181).

The reasons for the rule are stated by Selden, J., in Lawrence v. Kidder (10 Barb. 641), to be as follows, viz : “ The welfare of a state is advanced by the increase- of its productive industry. It is important, therefore, that each of its citizens should be free to employ himself in that department of labor in which his personal efforts will be likely to add most to the aggregate productions of the country. This is the first and leading reason for the rule in question. But there is another. The convenience of the public requires that all the various trades and employments of society should be pursued each in its due propor-. tion—a result with which the exclusion of any individual from his accustomed pursuits has a tendency to interfere. ” Originally, the rule was that all contracts in restraint of trade, though limited in their operation, were void. And especially if ithe restraint was general and unlimited in respect to space, the contract was absolutely void, no matter how much it was limited in respect to time. As civilization advanced, commerce extended, and the social conditions changed, the rule became less stringent. The modern rule is that a contract in partial restraint of trade, restricting it within certain reasonable limits or times, or confining it to particular persons, is valid, if founded upon a good and valuable consideration, and the test of the reasonableness of any restriction is, whether it is such as only affords a fair protection to the party in whose favor it is made, and at the same.time does not militate against the public interest (Dunlop v. Gregory, 10 N. Y. 241; Mackinnon Pen Co. v. Fountain Ink Co., 48 Super. Ct. 442, and cases there cited). But the reasonableness must X be made to appear. Nothing will be presumed in favor of such a contract. It is presumptively void, and the reasons , and the facts which render it valid, must be shown by the I party seeking to enforce it (Ross v. Sadgbeer, 21 Wend. 66).

In the case at bar the contract is clearly unreasonable as to space. The space covered by the contract includes about three-fourths, if not nine-tenths, of the territory of the state of New York, the entire states of Connecticut, Rhode Island, Massachusetts, New Jersey and Delaware, and portions of the states of Vermont, New Hampshire, Maine, Pennsylvania, Maryland and Virginia.

That the contract would be void beyond doubt in the states entirely covered by it, has been impliedly conceded by the plaintiffs, but they insist that this is not a matter of which the courts of New York will take cognizance, as. long as they, the plaintiffs, are willing to confine themselves to the enforcement of the contract within the territorial limits of New York ; and they consequently pray for only an injunction embracing those parts of this state which are covered by the contract. Under the decisions of Saratoga Co. Bank v. King (44 N. Y. 87), and Arnot v. Pittston & Elmira Coal Co. (68 N. Y. 558), it may be a question whether the point thus taken by the plaintiffs is tenable. But it is not necessary to determine it, for the contract covers too large a territory even in the state of New York.

The restraint practically embraces almost the entire state, for out of sixty counties it leaves to the defendant only the comparatively insignificant ones of Niagara, Orleans, Genesee, Erie, Wyoming, Chautauqua and Cattaraugus, and parts of the counties of Monroe, St. Lawrence, Franklin, Clinton, Livingston, Jefferson and Allegany, and out of all the important cities, it leaves to the defendant only Rochester and Buffalo. Upon this point, therefore, the case is fully covered by the decision in Lawrence v. Kidder (10 Barb. 641), in which case the restraint extended to the territory of the state west of Albany, and the decision of Homer v. Graves (7 Bing. 735), in which case the agreement was that a dentist would abstain from practicing his profession within one hundred miles of the city of New York.

The contract is also against the spirit, if not the letter, of the statute of this state, which provides as follows, viz: C£No person shall accept from any journeyman or apprentice any contract or agreement, nor cause him to be bound by oath or otherwise, that after his term of service expired such journeyman or apprentice shall not set up his trade, profession or employment, in any particular place, shop, house or cellar, &c.” (III. R. S. 6th ed. p. 180, § 51 [§ 39], 7th ed. Vol. III. p. 2353, § 39).

The statute, as will be seen, applies not merely to employers, but to every person, and the next section imposes a penalty upon every person accepting such agreement.” The defendant was what Mr. Bingham, one of the plaintiffs, in his testimony, called a journeyman roller-maker,” in the roller factory of Eogers & Co., and this admission is sufficient for the purposes of this action, in which the plaintiffs invoke the powers of a court of equity, even if under a prosecution under the statute it were necessary to show that the defendant regularly learned the trade of roller-making, &c., as an apprentice, and in due course of time became a journeyman. For present purposes, it is quite sufficient to treat the statute as a re-enactment of the common law doctrine relating to contracts in restraint of trade made by apprentices or journeymen.

The considerations so far stated increase in force when the plaintiff’s case is considered as a whole. The business of the plaintiffs’ firm consists in manufacturing printers’ rollers, and a composition with which they are covered. In that business they are liable to competition from other firms. Each firm, including that of plaintiffs, has its own processes concerning the use of certain materials and the proportions in which they are used, and each claims superiority for its own products in consequence of the processes employed. The plaintiffs concede that there is nothing about their processes which was, or can be patented, and that there are other firms which know of such processes. One, Jonas E. Cole, while employed by the plaintiffs, became acquainted with the processes of the plaintiffs, and, upon being discharged, he entered the employ of Eogers & Co. The defendant then was in the employ of Eogers & Co., and in that he subsequently acquired the knowledge which Cole had. In the course of time, both Cole and the defendant became quite skilled in the manufacture of rollers and- the composition with which they were to be covered, and their combined skill gave importance to Rogers & Co., as rivals and competitors of the plaintiffs. To overcome this rivalry and competition, the plaintiffs bought out Rogers & Co., but, instead of taking Cole and the defendant into their employ, they induced Rogers & Co. to get from each of them an agreement not to exercise their trade thereafter. For all that appears, it is the only trade from which either of them can gain a livelihood. On the other hand, there is no evidence that the facihties"’of"the plaintiffs for supplying all the demands of the entire trade are sufficient for the territory covered by the contract, nor is there any evidence of an adequate consideration beyond what appears upon the face of the instrument. As nothing is presumed in favor of a contract of this kind, and the burden of showing the reasons and the facts making it valid, rests upon the party seeking to enforce it, the plaintiffs have failed to make out a case which calls for the interference of a court of equity. Whatever reasons may exist in favor of a contract between vendor and vendee, or between partners agreeing upon a dissolution, whereby the good-will of a business purchased, or taken and accepted as a valuable part of the business, is protected against subsequent acts of the vendor or the retiring partner in derogation of the sale or the settlement, or which may be urged in favor of patented inventions, have no application to the case at bar, which is the case of an employee who is sought to be condemned to idleness so long as the plaintiffs and their survivors or successors shall continue in the business, which would practically prohibit the defendant forever. To enforce such a contract would make the individual as well as the public suffer injury, for the capacity of an individual to produce is not only a source of gaining a livelihood for himself, but constitutes his value to the public.

The complaint must be dismissed, with costs.