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      In re PEOPLE ex rel. THEODORE ROOSEVELT, et al., v. FRANKLIN EDSON, Impleaded, &c.

      Gontempt for violating the injunction ref erred to in the preceding opinion.

    In a proper action, brought by the proper party, and upon sufficient facts properly presented, an injunction may be issued by a court of general jurisdiction restraining the making of an illegal or corrupt appointment to a public office by the mayor of the city of New York.
    Such an action could formerly be brought only by a party individually and specially aggrieved. But under chapter 531 of the Laws of 1881 it may be brought by one or more taxpayers possessing the qualifications prescribed by said act, although representing no special private grievance. By said statute the right of action was extended so as to cover every illegal official act on the part of any of the officers named therein.
    A defendant is in contempt, and may be punished, for breach of an injunction, if the court or officer who granted it had jurisdiction, notwithstanding that the injunction was improperly or erroneously granted, or for an insufficient cause, or that it was too broad, or that it was, after the breach, vacated on motion. In every such case the defendant is bound to obey the order while it is in force.
    Jurisdiction over the subject matter of an action does not depend upon the presentation of facts sufficient to make out a specific and immediate cause of action, nor upon the ultimate existence of a good cause of action in the plaintiff in the particular case. It is the power lawfully conferred to deal with the general or abstract question involved in the action, and to inquire and adjudge whether the facts presented in a particular case which falls within the general or abstract jurisdiction, door do not entitle the plaintiff to any relief.
    Although in a case under section 603 of the Code of Civil Procedure, the right to an injunction during the pendency of the action depends upon the nature of the action, and is to appear from the complaint, yet if there be jurisdiction of the subject matter of the action within the rule above stated, an erroneous decision by a court or judge upon an application for an injunction as to the necessity of the presentation then and there of a formal complaint, does not render an injunction granted without a complaint void ab initio. At most, the absence of a complaint constitutes ground for a motion to vacate the order.
    A judge of the court of common pleas for the city and county of Now York is a county judge within .the meaning of section 606 of the Code of Civil Procedure, and of chapter 531 of Laws 1881, and as such has jurisdiction to grant an order of injunction in an action commenced, or about to be commenced in the superior court of the city of New York.
    Section 1809 of the Code of Civil Procedure, does not apply to the corporation of the city of New York, or to any municipal corporation, nor to any officer of any such corporation.

      Decided February 10, 1885.
    Upon a motion to punish for contempt in willfully violating an injunction granted with jurisdiction and personally served, it is no excuse that the defendant was advised by counsel, and believed that the injunction was null and void, and that he acted upon such advice and belief; or that the defendant believed it to be his duty under a statute to disregard the injunction; or that the defendant believed that the action was brought maliciously and without any foundation in fact; or that the injunction was, after its violation, vacated on motion.
    Advice of counsel, when stated in general terms only, and without the production of the writing, if written, or the affidavit of the counsel, if oral, will never be accepted as an excuse for a clear contempt. At most it may be considered in meting out punishment as an extenuating circumstance.
    The distinction between proceedings to punish for criminal contempt, and proceedings to punish as for contempt in civil cases, and the practice in both under the Code of Civil Procedure, stated and explained.
    Before Freedman, J., at Special Term.
    Motion to commit defendant, Franklin Edson, for contempt for willful disobedience of an injunction order.
    The facts appear in the opinion.

      Charles P. Miller, for relator, for the motion.

      Sewall, Pierce & Sheldon and David Dudley Field, and Robert Sewall, for defendant Edson, in opposition.
   Freedman, J.

This an application on behalf of the plaintiffs, that the defendant, Franklin Edson, be punished for a contempt of this court in willfully disobeying and violating an order of injunction, heretofore granted in this action by the Hon. Miles Beach, a judge of the court of common pleas for the city and county of New York, by which the said defendant, as mayor of the city of New York, was enjoined and restrained from appointing to, or nominating for, the office of commissioner of public works, or the office of counsel to the corporation, any person, until the further order of this court.

A copy of the said order of injunction, together with a copy of the bond or undertaking given by the plaintiffs on its procurement, and a copy of the summons in the action, accompanied by copies of the affidavits on which the order was granted, having been duly served on the defendant on the 80th day of December, 1884, no question arises as to the jurisdiction of the court over the person of the defendant, provided there was jurisdiction in other respects.

Since the service thus made, the question whether the injunction should be continued during the pendency of the action, was elaborately argued before the Hon. Charles H. Truax, at a special term of this court, and that learned judge decided that the motion for the continuance of the injunction should be denied, and that the preliminary injunction should be dissolved. This decision is no, bar to the present application. During the existence of the injunction the defendant was bound to obey it unless it was not merely voidable, but absolutely void, for the reason that it was made without any jurisdiction whatever. “While the injunction remained in force,” said Chancellor Walworth, in People v. Spalding, (2 Paige, 320), £ £ it was the duty of the vice-chancellor to punish every breach thereof; and in no case can a defendant be permitted to disobey an injunction regularly issued, whatever ihay be the final decision of the court upon the merits of the cause. If there is not sufficient equity upon the face of the bill to support the injunction, the proper course for the defendant is to apply at once for a dissolution.”

A party, therefore, will be in contempt for breach of an injunction, if the officer allowing it had jurisdiction, notwithstanding that it was erroneously granted, and for an insufficient cause (Sullivan v. Judah, 4 Paige, 444; Davis v. The Mayor, &c., 1 Duer, 451; People v. Sturtevant, 9 N. Y. 263 ; Erie Railway Co. v. Ramsay, 45 N. Y. 631; People v. Dwyer, 90 N. Y. 402).

But although the decision referred to, is no bar, the grounds upon which it was made, are important elements to be considered. In making that decision, Judge Tbuax, in a carefully prepared opinion, reached in substance the following conclusions, namely:

1. That in a proper action, brought by the proper party, and upon sufficient facts properly presented, an injunction restraining the making of an illegal or corrupt appointment to a public office by the mayor of the city of Mew York, may be issued;

2. That the facts presented by the affidavits in this case, did not warrant an injunction restraining the mayor from making any appointment or nomination, but only an injunction restraining the appointment or nomination, and the confirmation by the board of aldermen, of a particular individual, viz.: Fitz John Porter ; and

3. That because the papers upon which the injunction was granted, were unaccompanied by a complaint, and because the action was one in which the right to injunctive relief must appear from the complaint, the prehminary injunction which restrained the appointment or nomination of any person, should be vacated entirely.

The interests of an orderly administration of justice, as well as judicial custom and tradition, require that, in the absence of proof of a clear mistake or oversight, or of new and additional facts calling for a change, I should, while sitting at special term, respect and follow these conclusions.

A careful examination of the facts now made to appear, and due reflection upon the arguments of the learned counsel for the respective parties, have failed to present to my mind a sufficient reason for a departure from the usual course. I shall, therefore, in the disposition to be made of the present application, adopt the conclusions reached by Judge Tbuax as far as they go.

But they do not determine the question whether the learned judge of the court of common pleas, who granted the preliminary injunction, had jurisdiction to grant that particular injunction. Upon this point it is claimed, in the first place, that the injunction was null and void, because the learned judge who granted it, was not, and is not, a judge of this court, but of the court of common pleas; and because the only authority which prescribes by whom an order of injunction may be granted, is contained in section 606 of the Code of Civil Procedure. Under that section an injunction order may be granted : 1. By the court in which the action is brought; 2. Or by a judge thereof; 3. Or by any county judge.

In the Matter of Morgan, &c. (56 N. Y. 629), and in Lang v. Brown (6 Hun, 256), it was held that the judges of the court of common pleas are county judges for certain purposes; and in Wood v. Kelly (2 Hilt. 334) it was pointed out that they possess all the powers of county judges. The reasons which prevailed in these cases, would require me to hold that a judge of the court of common pleas is a county judge within the meaning of section 606, if that section were, as claimed, the only authority which specifies the officers who may make such an ■order. But such is not the fact. The section itself commences with the words, “Except where it is otherwise -specially prescribed by law.” Section 772 makes further and special provisions to the effect, that where an order in .an action may be made by a judge of the court out of court, it may be made by any justice of the supreme court, or by any judge of a superior city court, within the city wherein the court is located (which includes the court of common pleas), or by the county judge of the county where the action is triable, or in which the attorney for the applicant resides. This disposes of the claim so far considered, for the concluding part of the section prescribing the manner in which an order thus made, in case it grants a provisional remedy, may be vacated or modified, clearly shows that the order referred to, includes any order granting a provisional remedy, and a preliminary injunction is a provisional remedy. In addition to all this, it may yet be pointed out that section 277 provides, that in an action or special proceeding, brought in a superior city court, an order may be made without notice, or an order to stay proceedings may be made upon 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, and with like effect.

In the next place, the defendant claims that the injunction was null and void under section 1809, which is as follows, viz.: “An injunction order, suspending the general and ordinary business of a corporation or of a joint stock association, consisting of seven or more persons, or suspending from office, or restraining from the performance of his duties, a trustee, director or other officer thereof, can be granted only by the court, upon notice of the application therefor to the proper officer of the corporation or association, - or to the trustee, director, or other officer enjoined. If such an injunction order is made otherwise than as prescribed in this section, it is void.”

This section is contained in article V. of title II. of chapter XV. of the Code of Civil Procedure. Title II. of this chapter is entitled “Actions relating to a Corporation, ” and the different articles of this title are respectively entitled as follows, viz. : Article 1. Action by a corporation, and against a corporation, to recover damages or property. Article 2. Judicial supervision of a corporation and of the officers and members thereof. Article 3. Actions to procure the dissolution of a corporation, and actions to enforce the individual liability of the officers or members of a corporation, with or without a dissolution thereof. Article 4. Action by the people to annul a corporation. Article 5. Provisions applicable to two or more of the actions specified in this title.

Section 1804, which is the first section of article 5, provides that articles 2, 3 and 4, of title II. do not apply to an incorporated library society; to a religious corporation; to a select school or academy incorporated by the regents of the university, or by an act of the legislature, or to a municipal or other political corporation created by the constitution, or by or under the laws of the state.

From tliis it would seem as if sections 1804 to 1813, contained in article 5, were left so as to include a municipal corporation. But the provisions of article 5 are defined in the title of said article to be applicable only to two or more of the actions specified in title II.

How, all the actions specified in that title (except those mentioned in sections 1778, 1779 and 1780 in article I., which relate to actions against foreign corporations and to an action against a domestic corporation on a promissory note or other evidence of debt), are specified in articles 2, 3 and 4, and concerning these articles it is expressly enacted, as already stated, that they shall not apply to a municipal corporation. Sections 1805, 1806, 1807 and 1808 of article 5 refer expressly to actions brought as prescribed in articles 2, 3 and 4. Section 1810 provides for the appointment of receivers of corporations. Section 1812 contains express limitations on the application of section 1809, and both these sections are taken from chapter 151 of Laws 1870, a reference to which shows, that it was meant to refer to business corporations only.

The limitation contained in section 1812 requires that the application of section 1809 shall be confined to corporations, or joint stock associations, created by or under the laws of this state, and to the trustees, directors or other officers, of such corporations. The corporation known by the title of “ The Mayor, Aldermen and Commonalty of the City of Hew York,” was not in any sense created by or under the laws of the state of Hew York, though it is now subject to such laws.

It was created by and under Crown charters still largely in force and effect.

It therefore clearly appears that section 1809 does not apply to the corporation of the city of Hew York, nor to any officer thereof. But even if. it did, it would only, as I am inclined to believe, prohibit the granting, without previous notice, of an injunction which, when granted, would operate as a suspension of the general and ordinary business of the corporation, or as a total suspension from office of an officer thereof, or as a total restraint upon the general performance of the duties of such an officer. The mjunction in the case at bar was not of that character. It only .restrained the exercise of a single power or duty out of many, and it left the general and ordinary business of the corporation,-—if a municipal corporation can be deemed to • have a general and ordinary business within the true meaning of.these words, as used in section 1809,— undisturbed, and the mayor unrestrained in the performance of his other multifarious powers and duties. In this connection it may be well to point out that chapter 531 of the Laws of 1881, which will be more fully considered hereafter, expressly authorizes the granting of an injunction against any officer of a municipal corporation to prevent any illegal official act.

In the third place, the defendant claims that the injunction was null and void, for the reason that the facts presented by the affidavits, did not warrant an injunction restraining the mayor from making any appointment or nomination, but at most only an injunction restraining the consummation of the appointment, and the confirmation of such appointment by the board of aldermen, of a particular individual, viz.: General Fitz John Porter.

That the affidavits contained competent proof only to such a limited extent, has been expressly decided by Judge Trtjax. But from that it does not follow that the injunction, though too broad, was without jurisdiction.

The papers presented on the application for the injunction showed that the action wras brought under chapter 531 of the Laws of 1881, entitled “ An act for the protection of taxpayers.” This statute 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 maintained against them to prevent any illegal official act on the part of any such officers, agents, commissioners or other persons, or to prevent waste or injury to any property, funds or estate of such county, town, village or municipal corporation by any person whose assessment, or by any number of persons jointly the sum of whose assessments shall amount to one thousand dollars, and who shall be liable to pay taxes on such assessment or assessments rathe county, town, village or municipal corporation, to prevent the waste or injury of whose property the action is brought, or who have been assessed or paid taxes therein upon an assessment or assessments of the above named amount, within one year previous to the commencement of any such action or actions.

This statute took the place of chapter 435 of the Laws of 1880, which it repealed. The act of 1880 amended chapter 526 of the Laws of 1879, which amended chapter 161 of the Laws of 1872, which was the first of the so-called taxpayers’ acts. The act last referred to, conferred upon certain taxpayers therein described, the right to prosecute all officers and agents acting for and on behalf of any county, town or municipal corporation, in order to prevent waste or injury to any property, funds or estate of such county, town or municipal corporation. By the act of 1881 all officers and agents of villages were included, and the right of action enlarged, so as to enable the complaining taxpayers, not only to prevent the waste or injury, but also to restrain any illegal official act. Upon furnishing, as required by said act, a bond to the defendant in the action, to be approved by a judge, and a copy of which is to be served with the summons, the plaintiff or plaintiffs in such an action may have an injunction to accompany the summons.

In the case at bar, a bond drawn in conformity with the requirements of the statute, was submitted to Judge Beach, with the summons in the action and certain affidavits. These affidavits, as already stated, contained sufficient competent proof to authorize an injunction restraining the consummation of the appointment, and the confirmation of such appointment by the board of aldermen, of General Fitz John. Porter as commissioner of public works. But that was not all. They also contained many allegations having the appearance of allegations of fact, to the effect that, in furtherance of a corrupt bargain and combination, the nomination of General Fitz John Porter to the board of aldermen, would be withdrawn by the mayor, and that thereupon, in furtherance of a corrupt bargain or understanding, the defendant, as mayor, would illegally make, and the board of aldermen illegally confirm, nominations for the office of commissioner of public works and the office of counsel to the corporation, and that under no circumstances honest nominations were to be made.

Upon the papers thus presented and their contents, Judge Beach was called upon to determine whether an injunction of some sort should issue, and, if so, to what extent, or whether the motion for an injunction should be denied altogether. If he had jurisdiction to make the determination, he had jurisdiction to act further in the premises. Now the act of 1881 expressly authorizes a county judge to make such a determination and to act upon it. If, therefore, Judge Beach possessed no other power than the powers of a county judge, acting exclusively under and by virtue of the authority vested in him by the act of 1881, which is hardly the case, he had at least jurisdiction to that extent. The same reasons which required me to hold that he was, and is, a county judge within the meaning of that term, as used in section 606 of the Code, call for the conclusion that he was, and is, a county judge within the meaning of that term, as used in ■ the statute of 1881.

The inevitable consequence is that, inasmuch as he had power to determine the application and to act further in the premises after having determined that the plaintiffs were entitled to injunctive relief of some sort, jurisdiction attached to the order as finally granted. The authorities upon this point are quite conclusive. In the People v. Sturtevant (9 N. Y. 263), it was held that on an appeal from a commitment for contempt in disobeying an injunction, the question of jurisdiction does not involve the inquiry whether the case made by the complaint entitled the plaintiffs to relief, but only whether the court had power to decide, whether it entitled them to relief or not. In Hunt v. Hunt (72 N. Y. 217), it was held that jurisdiction over the subject matter of an injunction, does not depend upon the ultimate existence.of a good cause of action in the plaintiff in the particular case. Jurisdiction is the power lawfully conferred to deal with the general subject involved in the action.

In Lange v. Benedict (73 N. Y. 12), Folger, J., says : “ What is meant by jurisdiction of the subject matter we have had occasion to consider lately, in Hunt v. Hunt (72 N. Y. 217). It is not confined within the particular facts, which must be shown before a court or a judge, to make out a specific and immediate cause of action it is as extensive as the general or abstract question, which falls within the power of the tribunal or officer to act concerning.....It is 'the general abstract thing which is the subject matter. The power to inquire and adjudge whether the facts of each particular case make that case a part or an instance of that general thing—that power is jurisdiction of the subject matter.”

In the Mayor, &c. of New York v. The N. Y. and Staten Island Ferry Co. (64 N. Y. 622), it was held, that an injunction order, though more extensive in its restraints, than the prayer of the complaint, is not, for that reason void, but must be obeyed.

And in the case of the Atlantic and Pacific Telegraph Co. v. The Baltimore and Ohio R. R. Co. (46 Super. Ct. 377), it was held that the fact that an injunction is too broad, and restrains the doing of acts which the court has no jurisdiction whatever to restrain, as well as acts over Which the court has jurisdiction, is no excuse for the violation of the injunction, by the doing of the acts over which there is jurisdiction.

In view of these authorities, it can make no difference in the case at bar, so far as the question of jurisdiction is concerned, that the order of injunction as granted was too broad, or that the learned judge who granted it, erred as to the measure of relief. thereby granted, or that it was subsequently determined, on a hearing of all parties and a thorough inspection and examination of the papers and a searching analysis of their contents, that no injunction should have been granted.

In the fourth place, the defendant claims that the injunction was null and void, because no complaint accompanied the papers upon which it was granted. As already stated, this failure to include a complaint constituted the ground upon which the injunction was vacated by Judge Truax. But did it constitute a jurisdictional defect ?

The Code of Civil Procedure provides that a temporary injunction may be granted by order. (1.) Where it appears from the complaint that the plaintiff demands and is entitled to a judgment against a defendant, restraining the commission or continuance of an act, the commission or continuance of which, during the pendency of the action, would produce injury to the plaintiff (§ 603), and (2.) Where it appears, by affidavit, that the defendant, during the pendency of the action, is doing or procuring, or suffering to be done, or threatens, or is about to do, or to procure, or suffer to be done, an act, in violation of the plaintiff’s rights respecting the subject of the action, and tending to render the judgment ineffectual, &c. (§ 604).

Thus, in a case under section 603, the right to an injunction depends upon tho nature of the action, and is to appear from the complaint, while in a case under section 604 the right to an injunction is extrinsic to tho cause of action, and is to appear by affidavit.

The consequence is that, even if in all cases falling within section 603 the presentation of a complaint drawn up in due form, were necessary, the court or judge upon an application for an injunction, would have to determine whether the particular action in which the application is made, falls within section 603 or section 604, and to determine the necessity of a formal complaint accordingly. If then there be jurisdiction of the subject matter of the action, within the rule heretofore ascertained, an erroneous decision as to the necessity of a formal complaint would not deprive the court or judge of jurisdiction, in the absence of an express statutory provision declaring void all acts done under or in consequence of such erroneous decision. No such statutory provision exists. On the other hand, it should be considered that under section 416, an action is commenced by the service of a summons alone ; that under section 399 an attempt to commence an action in a court of record, is in certain cases equivalent to the commencement thereof against each defendant when the summons is delivered, with the intent that it shall be actually served, to the sheriff; that section GOT, in general terms and without limitation or qualification, prescribes that an order of injunction may be granted, where it appears to the court or judge, by the affidavit of the plaintiff, or any other person, that sufficient grounds exist therefor ; and that section 608, in express and general terms and without limitation or quahfication, provides that the order may be granted to accompany the summons, or at any time after the commencement of the action and before final judgment.

In construing these provisions together, and giving due force and effect to each and every one of them, but keeping at the same time in mind the principles which determine the question of jurisdiction over the subject matter of an action, the conclusion is inevitable that, while in a case falling within section 603, which undoubtedly applies to the case at bar, the court or judge, as a matter of orderly practice, should insist upon the presentation of a formal complaint at the time of the application for an injunction, a failure to do so on granting the injunction, though it may constitute ground for a subsequent motion to vacate, is not a jurisdictional defect which renders the injunction ipso facto void.

Section 603 was taken from the first paragraph of section 219 of the first code, which also demanded that the right to injunctive relief should be apparent from the complaint. In a number of cases which arose under that provision, the courts differed as to the necessity of a formal complaint to sustain the injunction. But while in some, such necessity was insisted on, it was held in Morgan v. Quackenbush (22 Barb. 72), and by the general term of the supreme court in Mattice v. Gifford (16 Abb. 246), that the requirement that the right to injunctive relief should appear from the complaint, was sufficiently complied with, when it was made to appear by affidavit, what the allegations of the complaint in that respect were or would be. These two cases were never overruled, and even in the cases in which the contrary was held, nothing can be found which is in direct support of the claim, that an injunction granted in the absence of a formal complaint was for that reason alone null and void because made without jurisdiction. As already shown, the Code of Civil Procedure left the question where it stood before.

Upon the whole, I am of opinion that, while Judge Truax had the power to vacate the order of injunction, for the reason that the proper practice had not been observed by the plaintiffs in the procurement of it, Judge Beach was not without jurisdiction in granting it. The order, therefore, was not null and void ab initio.

The examination so far made sufficiently establishes that in every aspect that can be taken of the case, Judge Beach had sufficient jurisdiction to grant an order of injunction in it, and that consequently the injunction he granted, was valid in law as long as it remained in force, and that the defendant had no right to disobey it. The question of propriety, arising from the fact that the learned judge referred to, made an order in an action about to be commenced in this court, without any proof before him that the judges of this court were inaccessible, does not in anywise impair his jurisdiction in the premises. And the order having been made in the exercise of jurisdiction which attached, it became by operation of law the lawful mandate of this court, just as in the case of the People v. Dwyer (90 N. Y. 402), the order of the county judge became the lawful mandate of the supreme court.

The matters thus established fully dispose of the complaint made by the defendant, that the granting of the injunction was an enormous abuse of the judicial power. But as this complaint was not only indorsed, but also seriously and warmly pressed by the learned counsel for the defendant, in a manner which aroused public attention and great public interest, some additional remarks are called for.

In this country, the security of life, liberty and property depends upon the respect which is paid by all classes to the law, and everything and everybody is in some form or other subject to the law. Municipal corporations constitute no exception. Though perhaps the action of the mayor of the city of Hew York, in the matters relating to the appointment of such officers as he has the power to appoint, is not so much the exercise of a privilege or franchise, as Judge Truax seems to have held, as the exercise of a power and duty conferred and imposed by statute, it is, nevertheless, a power and a duty of a kind which, not being of a legislative character, has at all times, on the application of a party individually aggrieved, been subject to judicial scrutiny, not for the purpose of directing it affirmatively, but to prevent abuse. This fully and clearly appears from the decisions in Davis v. Mayor, &c. (1 Duer, 451); People v. Compton (Ib. 512); People v. Sturtevant (9 N. Y. 263); People v. Dwyer (90 Ib. 402).

Even state officers constitute no exception to the rule. They may be enjoined in a proper case from the performance of their duties or from executing the provisions of a statute, and if the case is a proper one, all that the law requires is that the injunction shall be granted by the supreme court at a general term thereof and upon notice to the officer or board to be restrained (Code Civ. Pro. § 605).

Since the decisions in Davis v. Mayor, People v. Compton, and People v. Sturtevant, and with full knowledge thereof, as must be assumed, the legislature passed the so-called taxpayers’ acts hereinbefore referred to, and by them extended the right of action against municipal corporations and the officers therein specified, to a class of plaintiffs who represent no special prívate grievance, but only one which they have in common with all others belonging to or falling within the same class. This at once disposes of all the objections raised by the defendant to the standing of the plaintiffs in court. Upon an examination of these acts it will be found that since 1872, when the first of these acts was passed, the right of action itself was greatly enlarged. Originally the right of action given by the act of 1872 extended only to the prevention of waste or injury to corporate property or funds. In 1881 it was so far extended as to include the prevention of any illegal act. As the right of action was thus enlarged, the duty imposed on the courts to grant injunctions was correspondingly increased. The courts did not seek this increase of jurisdiction. They were not even consulted about it. If it is not proper that they should have it, the legislature may and ought, to take it away again. At all events, the remedy is with the legislature, and all complaints on that score should be addressed to that body.' While the' duty remains cast upon the courts to entertain such suits, and to grant injunctions therein., they are bound to obey the will of the sovereign power of the state in the premises. All they can do, is to require full and competent proof and to hold plaintiffs to strict practice. The officers of municipal corporations and all other officers covered by the acts referred to, will do well hereafter to bear these matters in mind and to regulate their official conduct accordingly.

Having shown that the order of injunction was valid, and that it should have been obeyed, it now becomes material to- inquire into its violation and the manner in which, and the circumstances under which, it was violated.

It was served with the other papers hereinbefore enumerated upon the defendant, as mayor, and upon each of the other defendants herein who were aldermen, on the 30th of December, 1884. On the same day the bond given by the plaintiffs and approved by Judge Beach was filed in the county clerk’s office. The injunction enjoined and restrained the appointment or nomination, and the confirmation of any nomination of any per son, to the office of commissioner of public works or the office of counsel to the corporation until the further order of this court to be made and entered upon a hearing to be had the next day, namely, December 31, 1884, at 11 o’clock in the forenoon of that day, at a special term of this court. At the time and place specified, the motion for the continuance of the injunction was duly argued on behalf of the plaintiffs, and opposed on behalf of the defendant Edson, as well as on behalf of certain others of the defendants, before Judge Tritax, as already stated. The defendant Edson offered no pi’oof in denial of the charges made against him. Some of the aldermen did. The arguments on the motion were concluded at 4 P. M. on the 31st of December, 1884, and the judge reserved his decision. Thereupon a little later on the same day, and before any decision had been rendered, the defendant Edson sent to the board of aider-men, then in session the following official message, viz.:

“ Mayor’s Office, |
New York, December 31, 1884. j To the Honorable, the Board of Aldermen :
“I am advised by the counsel assigned me by the Counsel to the Corporation, that the injunction served upon myself in the case of Roosevelt and others against the Mayor and Aldermen, restraining the nomination to your Honorable body, of persons to fill the vacancies now existing in the public offices of this City, is void.
“I therefore send you the accompanying communications. Franklin Edson,
Mayor.”

In the accompanying and some subsequent communications, the defendant withdrew the name of Fitz John Porter as commissioner of public works, and nominated and appointed Robin M. Squire to be commissioner of public works, and William Dorsheimer to be counsel to the corporation. The board of aldermen confirmed the nomination of Squire, and rejected the nomination of Dorsheimer.

This action was a direct violation of the order of injunction, and by such violation the object of the action and the plaintiff’s remedy herein have been wholly defeated, at least so far as the office of commissioner of public works is concerned.

The next inquiry, therefore, must be whether the defendant Edson has established any excuse, of which the law can take cognizance.

He admits that he took the action complained of, but insists that in taking it he was not actuated by any intention of violating any legal order of this court, or of any judge thereof, or of any judge having authority to make the order of injunction. This is mere legal quibbling. The order served upon him, as already shown, was legal; it was the mandate of this court, and the action taken by him was a direct violation of it.

Under these circumstances the rule must be enforced, which is elementary, and alike applicable to civil and criminal proceedings, that every man is conclusively presumed to foresee, and consequently must be held responsible for the direct and natural consequences of an act purposely done.

Pie says that vacancies existed in the office of commissioner of public works, and the office of counsel to the corporation, which, under the statute it was his duty to fill. The offices were not actually vacant. The incumbents .held over until their successors should be lawfully appointed.

It was no more his duty to fill such vacancies than it was the duty of the judge, under another statute, upon a proper application and upon proof that the action proposed to be taken by the defendant was corrupt and consequently illegal, to restrain him from filling them. Each had a duty to perform and each had rights which the other was bound to respect. Of course, a long list of cases may be cited in which the courts have said that a court will not interfere with the exercise of a discretionary power, lodged by law in a public officer, by substituting its own judgment for his, and the cases cited by the learned counsel for the defendant belong to this class. But what was thus said, was said after an actual interference to an extent, which, upon examination, satisfied the court that it ought not to interfere any further, and even then, in the majority of cases, at least, the assertion was made, that if the evidence had been strong enough to establish the necessity for further interference to prevent abuse, injustice, oppression, the violation of a trust, or the consummation. of a fraud, the court would have had the power to proceed further, and would have exercised the power. These cases simply hold that courts will not restrain the erroneous exercise of discretion lodged by law in a public officer, as long as he acts honestly, and they therefore do not apply to a corrupt and illegal exercise of discretionary power. They are all cases which occurred prior to 1881, and they do not affect the question of jurisdiction, which is decisive in the case at bar. For present purposes it is sufficient to say, that if no power whatever had ever existed in a court of equity prior to 1881, to restrain the corrupt and illegal exercise of discretionary power vested in a public officer, it was expressly conferred by the statute passed in that year.

He says that his term of office, as mayor, expired on the 31st of December, 1884, and that he could not wait until the rendition of a decision upon the motion heard on that day. From the report of the case of People v. Compton (1 Duer, 512), it appears that in that case alderman Sturtevant made a similar plea (p. 529), and that it did not avail him. Moreover, in the present case, the situation of affairs on the 30th and 31st days of December, 1884, was, in a great measure, created by the defendant himself. The vacancies occurred on December 10, 1884. By delaying decisive action until the very close of his term, the defendant had aroused public suspicion that he had other motives, than a regard for the interests of the municipality he represented.

He says that he was advised by counsel and believed that the order of injunction was null and void, and that he acted upon such advice and belief. That this is not an answer to the proceeding for contempt has been repeated!y held (Hawley v. Bennett, 4 Paige, 163 ; Rogers v. Paterson, 4 Ib. 450 ; Lansing v. Easton, 7 Ib. 364; People v. Compton, 1 Duer, 512).

Upon this point, Duer, J., in his pronouncing the judgment of the court in the case last referred to, said: “While upon this subject, we deem it necessary to observe that the advice of counsel, when stated in general terms, as it here is, will never' be accepted by this court, as excusing or palliating a contempt, which is otherwise manifest or proved. The advice, when thus stated, will never be permitted to affect our decision. To enable us to regard it at all, the names of the counsel must be given, and the information that was laid before them, and the exact import of their advice must be fully stated. If the advice was written, the writing must be produced; if oral, the fact that it was given, and its precise import, must be verified by the affidavits of the counsel who gave it. The propriety of these rules and the necessity of adhering to them, will be doubted by none who have any knowledge of the difficulties that beset a court in the due administration of justice, and of the means too frequently employed, by a suppression of truth, to evade .its authority.”

And as to the belief of a party proceeded against, the learned judge referred to, said :

“He who resists the order or process of a court of justice, trusting to his own belief of its want of jurisdiction, acts, in all cases, at his own peril, and when he is proved to be mistaken, is, in all cases, justly punished. And I add, that it is upon this principle alone, that the supremacy of the law and the just authority of courts of justice can be maintained.”

The defendant now here advances the excuse, that he acted under advice of counsel in general terms only. The precise import of the advice, and the grounds upon which it was given, are not clearly set forth. It does not appear whether the advice was in writing or oral, and neither writing nor affidavit by counsel has been submitted. Under these circumstances, the case is fully controlled by the authorities cited. The most I can do, is to consider the fact that the advice was given as claimed and believed, as an extenuating circumstance to be considered in meting out punishment.

The defendant, by way of excuse, reiterates the fact that the injunction was subsequently vacated by Judge Truax. From what I said in the beginning, as to the effect of this decision upon the present motion, it sufficiently appears that the claim cannot be accepted as a valid excuse for a deliberate violation of the injunction while it was alive, and mere repetition would answer no useful purpose.

And, finally, the defendant in his affidavit says, that in bringing the action, the plaintiffs were actuated by improper motives, and, in this connection, he denies what, on the hearing before Judge Trttax, he omitted to deny, viz., the truth of all the charges of corruption and illegality made against him in the affidavits on which the injunction was granted. He thus seeks, at this late day, to raise an issue as to the real merits of the action. That this cannot be done, I think I so clearly demonstrated, both upon principle and authority, in the course of my discussion of the question of jurisdiction, that no further remarks are necessary.

The result is that none of the excuses that have been advanced and considered, have any force or validity in law.

Before proceeding to a final adjudication, however, it .becomes necessary to pause for a moment, - to notice the distinction between criminal contempts and proceedings as for contempt in civil cases, and to consider what remains to be done.

The revised statutes made, and the Code of Civil Procedure preserved, such distinction. In the People v. Dwyer (90 N. Y. 402), Finch, J., says, upon this point:

As it respects disobedience to the orders of a court, the sole difference appears to be that a willful disobedience is a criminal contempt, while a mere disobedience by which the right of a party to an action is defeated or hindered, is treated otherwise.”

A very thorough and elaborate discussion of the same question, as it stood under the revised statutes, may be found in the People v. Compton (1 Duer, 512).

Proceedings for contempt are now regulated by the Code of Civil Procedure. In addition to the distinction already pointed out, a further distinction is as follows : In a proceeding as for contempt of court, other than a criminal contempt, if an actual loss or injury has been produced to a party by reason of the misconduct of the offender, a fine sufficient to indemnify the aggrieved party must be imposed upon the offender, but where no actual loss or injury has been shown, the fine which may be imposed must not exceed the amount of the complainant’s costs and expenses and $250 in addition thereto (§ 2284). In a proceeding to punish for a criminal contempt, the punishment may be by fine not exceeding $250, or by imprisonment not exceeding 30 days in the county jail, or both, in the discretion of the court (§ 9).

In the case .at bar, the plaintiffs do not claim that they sustained any actual loss or injury. Their motion is that the defendant be punished for a criminal contempt under subdivision 3 of section 8, which makes a willful disobedience to its lawful mandate ” a contempt of court.

Upon such a proceeding, the party charged must be notified of the accusation and have a reasonable time to make a defense (§ 10). To bring him before the court, one of two methods of proceeding must be adopted, viz : he must be brought in either by and under an attachment to answer for the alleged contempt, in which case interrogatories must be filed to be answered by him, or by an order duly served upon him, requiring him to show cause why he should not be punished for the alleged offense, in which case the question is determined upon affidavits (§ 2269).

The defendant now here was* personally served with the order requiring him to show cause why he should not be punished for the violation of the injunction, and with the affidavits and other papers upon which the said order was made. He appeared, submitted his proofs, and was heard in opposition. Under these circumstances it is not necessary that he should be brought once more into court on an attachment, and that interrogatories should be administered to him prior to a final adjudication upon the contempt charged against him (Mayor, &c. v. N. Y. & Staten Island Ferry Co., 64 N. Y. 622).

Having arrived at this point, the case is now ripe for a final adjudication.

The defendant deliberately chose to place himself towards this court, in a relation of direct and open hostility. Admitting the service of the order of injunction upon himself, which upon its face showed that it was granted in an action brought in this court, and correctly construing it as commanding him to desist from filling the vacancies in the two offices referred to, he chose to treat it as an illegal assumption of judicial authority, and therefore he proclaimed, in an official message to the board of aldermen, that it was void. All this was done in the face of an express provision of law that the jurisdiction of this court, in an action or a special proceeding brought therein, must always be presumed (Code Civ. Proc. § 266). He thus publicly raised an issue with this court, which this court is compelled to meet and to determine. For obvious reasons it would be desirable, were it possible, that such issue should be determined by some other tribunal. But as no such transfer can be made of the jurisdiction of this court, I have no right to shrink from the performance of the duty which the law casts upon me.

None of the excuses advanced by the defendant having any force or validity in law, and all his objections, both of form and substance, having been found untenable, and nothing appearing which could furnish a respectable apology for the omission of the court, to take such notice of the defendant’s misconduct as is due to the interests of the public and to a proper administration of justice, the defendant, for the reasons hereinbefore stated, must be ádjudged to have been guilty of a willful disobedience to a lawful mandate of this court, in deliberately violating the order of injunction served upon him, and consequently guilty of a criminal contempt of this court.

And now it becomes my painful duty to decide what the punishment shall be. In the performance of that duty I deem it fit and proper to recall to mind, from the sterling remarks made by Judge Duer in the Compton case, the following sentence, viz. :

Our country is -great, flourishing and prosperous, because the people has at all times, in the exercise of its own sovereignty, been accustomed, and has rejoiced to confess, the sovereignty of the law, as limiting and controlling its own. It is so, because we long have been, still are, and I trust will ever remain, a law-reverencing, law-obeying and law-abiding people. But it is manifest that this deep reverence for the law, this prompt and cheerful submission to its dictates, this fixed resolve to abide its determinations, by which, as a nation, we have hitherto been distinguished, are inseparably connected with the confidence which is reposed in those by whom the law is administered, and can, in reality, subsist no longer, than while that confidence is felt and maintained. Hence, none are more dangerous enemies to our country and its institutions, by whatever pretext they may seek to veil their conduct, than those who seek to destroy or impair this necessary confidence, by rash denunciation, groundless imputations, open disrespect, and public disobedience. The inevitable tendency of such proceedings is to weaken and unsettle our government in its very foundations, and in every branch of its administration. They strike at the root of our national prosperity, and poison and corrupt the fountain from which all our blessings flow—the supremacy of the law manifested and sustained by the ready submission of all to its dictates and authority.”

The evil example thus referred to, is, as was said by Judge Bosworth in the same case, still more pernicious in its tendency when set by a man invested with authority, who, by virtue of his office, is a conservator of the public peace.

The defendant, as mayor, was the chief executive officer of the corporation of the city of New York. He was elected to that high office by the votes of a majority of the electors of this great city. He, above all others, should have set an example of devotion and submission to the supremacy of the law as administered by the tribunals created by the sovereign power of the state for that purpose. Occupying such a high position, his willful and public disobedience to the positive mandate of a court of general jurisdiction, is an act of far-reaching consequences. Under these circumstances, and inasmuch as neither the sentence by this court, in the Compton case of Alderman Sturtevant, to imprisonment for fifteen days and the payment of a fine of $250 into the city treasury, and of a further fine of $102.07 to the relators, for their costs and expenses, nor the sentence by the supreme court in the Dwyer case of each of the seventeen aldermen to imprisonment for thirty days and the payment of a fine of $250, deterred the defendant from defying the authority of this court, the case demands the Infliction of the highest punishment authorized by law, unless mitigating circumstances can be found that can properly be considered.

Upon this point I have, after due deliberation, come to the conclusion that some of the matters urged as an excuse, but rejected as insufficient in law for that purpose, ought to be accepted in mitigation. The fact cannot be denied that the order of injunction was granted under circumstances which made it difficult to ascertain whether there was or was not jurisdiction, and, being advised by-counsel that the order was void, the defendant may well have believed it. Moreover, the practice of the plaintiffs themselves in obtaining the injunction, was so faulty and irregular as to lend color to the theory that the order was invalid. Upon the whole, I am charitable enough to think, that the defendant actually believed that the order was void.

But after giving to the defendant, the „ fullest benefit of every extenuating consideration that can be presented, the case still remains one which calls for substantial punishment.

I therefore direct that for the willful disobedience and the contempt of which the defendant stands adjudged guilty, he be imprisoned in the county jail for the period of fifteen days, and that, in addition thereto, he pay a fine of two hundred and fifty dollars.

And I further direct, that the order to be entered and the commitment to be issued, be presented for settlement on a notice of two days, to the attorneys of the defendant.


source: Caselaw Access Project

author: Sedgwick, Ch. J.

license: Public Domain

text:
    JAMES A. DEERING, Respondent, v. THOMAS J. McCAHILL, Appellant.

      Contract, for legal services to be performed, at discretion—entirety of— evidence sustaining action on—non-performance within contract time, waiver of—quantum meruit, effect of evidence of, in action on contract— construction.

    The contract was that plaintiff should take such legal proceedings as to him should seem fit to secure the vacation or reduction of divers specified assessments and to recover back all payments made or which should be made in respect thereof. The evidence showed that plaintiff took proceedings successfully as to some of the assessments; there was also evidence to the effect, that as to the others, any proceeding taken would have ended adversely, and reasons were given for not proceeding. Held, sufficient to sustain a verdict for plaintiff, in an action to recover com pensation for his services.

      Decided February 2, 1885.
    The defendant assented to proceedings going on after the day fixed by the contract for their completion, and in one instance took part therein, ’and he did not claim the contract was at an end until suit was threatened. Held, the contract was not avoided.
    It was claimed the plaintiff’s proceedings, so far as they were successful, were so only by reason of an act passed since the contract was made, and, therefore, that plaintiff could not recover the contract, but only on a quantum meruit. Held, that assuming this to be correct, yet as the undisputed evidence showed that the services were worth the amount that the contract, specified, a verdict for that amount would not be disturbed.
    In the construction of provisions of contract as to payment for services, the phrase “sum due for said assessments,” comprises interest on their first amounts.
    Before Sedgwick, Ch. J., and O’Gorman, J.
    This action was brought on a contract to recover the contract price for services rendered.
    This contract was as follows :
    “I hereby retain James A. Deering, counsellor.at law,
    ■ to take such legal proceedings as to him shall seem fit to secure the vacation or reduction of the assessments upon the premises hereinafter set forth, for regulating, &c., the Boulevard, confirmed December 29, 1876, and the Riverside Park Opening, confirmed August 2, 1872, and to recover back all payments made or which shall be made in respect of said assessment on said premises ; the said proceedings must be completely ended by the first of January, 1881. And in consideration of such service, I agree to pay to said Deering twenty-five (25) per cent, of the amount which the sums due for said assessments shall be reduced ; and in case no reduction shall be obtained within said time, the said Deering shall receive nothing in respect of his services' herein. And it is understood and agreed that I shall have the right to pay all or any of said assessments upon said premises unpaid, and if I shall hereafter pay a portion or the whole of any such assessments, and he shall not be able to recover the money so paid, that he shall be paid nothing, and have no charge or claim against me for services or costs, or expenses on account of the assessment, or the portion thereof which shall have been paid.” (Here followed a schedule of the assessments referred to.)
    On the trial, after the plaintiff had clsoed his case, defendant’s counsel moved for a nonsuit on the following grounds:
    “First : That the plaintiff has shown no performance of the contract of retainer. Second : That the plaintiff has shown no performance of the written contract; in this, that the contract of November 26, 1876, is an entirety and contemplating professional services in reference to assessments upon six parcels of property, and plaintiff is not entitled to recover under the contract for services • rendered in reference to the assessments mentioned in the complaint, without showing that he took proceedings in reference to the other assessments mentioned in the contract. Third : That the plaintiff cannot recover the stipulated compensation under the contract for services in reducing the assessments mentioned in the complaint without showing a good reason for not proceeding to remove the other assessments or to recover back the money. Fourth : That the plaintiff shows that the contract was not performed within the time specified, and therefore he is not entitled to recover the contract stipulation, but only a quantum meruit. Fifth : That the law under which the plaintiff secured this reduction of the assessment was not in existence at the time the contract of retainer was entered into and therefore not in contemplation of the parties. Sixth : That for services rendered under that act plaintiff is not entitled to the contract amount of compensation, but only to a quantum meruit.”

    The motion was denied and defendant excepted.
    The defendant rested, and then asked the court to direct-the jury to render a verdict for the plaintiff for the sum of $390.03, with interest thereon from December 30, 1882, that being one-fourth of the reduction, excluding interest, from those items, which motion and request the court refused, and to which decision defendant’s counsel duly excepted.
    The court thereupon directed the jury to find a verdict for the plaintiff in the sum of $939.39, to which direction defendant’s counsel duly excepted, and thereupon the jury so found.
    From its judgment entered on the verdict defendant appeals.
    Other facts appear in the opinion.

      Sheldon & Brown, attorneys, and De Witt C. Brown, of counsel for appellant,
    argued :—I. The contract in this case bound plaintiff to institute all such proceedings as were ordinary, or usual, or reasonably adapted to the end proposed, such as a jury would say were reasonable, and such as a court might presume were fairly ex]Dected by the defendant (Livingston v. Tyler, 14 Conn. 494; Milldam Foundry v. Hovey, 2 Pick. 417; Del. L. & W. R. R. Co. v. Bowne, 47 N. Y. 578; Lawson v. Bachman, 81 Ib. 616, 617). The contract of retainer was an entirety, and no recovery could be had for services in reducing two assessments, without showing a reasonable effort to recover back the others, and it was not for plaintiff to say that such effort would be futile. That is not the question. He had' not undertaken to be successful in any, but had agreed to make a reasonable effort in all. The defendant by his contract had placed the matter of these six assessments wholly in the hands of plaintiff; the defendant had no longer any control over them, and could not employ another attorney. To assume then that plaintiff had the right to initiate proceedings upon some, and omit proceedings upon other assessments, as he might capriciously elect, is necessarily to assume that he had not agreed to do anything. There is no middle ground ; either he agreed to take proceedings, or there was no agreement on his part that bound him to anything. This conclusion is wholly inadmissible. The ground upon which the doctrine of entirety rests, says Story, is that the performance of the whole is the essential consideration of the contract, and is a condition precedent to the payment of any part of the price (Story on Cont. §§ 22, 23; Clark v. Baker, 5 Metcalf, 452). The plaintiff agreed to "take proceedings in six cases and close them in a specified time for 25 per cent, upon the total reduction and recovery ; how then can it be determined what he is entitled to till he has exhausted proceedings in the six cases ? The contract was manifestly an entire one (Atwood v. Norton, 27 Barb. 638 ; Willson v. Martin, 1 Den. 602; Anderson v. West, 38 Super. Ct. 441).
    II. Under the contract, plaintiff was bound to take proceeding, even though satisfied he could not succeed in recovering back the assessments.
    III. The plaintiff admits that he did not accomplish any thing to entitle him to compensation within the time limited by the contract, but claims that defendant extended his time for concluding proceedings” in the Boulevard case and supplied an affidavit. But defendant claims that this entitled plaintiff not to the contract price, for the contract had not been performed, but to a quantum meruit only, especially as the contract had not been performed by plaintiff in respect to the Riverside assessments.
    IV. It was conceded by plaintiff that the reduction for which he claims 25 per cent, under the contract was effected under a statute passed long subsequent to making the contract. The contract then was not made with reference to this law, and the same could not have been in contemplation of the parties, and the plaintiff was not ■entitled to the contract price of compensation under the circumstances. Suppose the legislature had enacted that the assessment was wholly illegal and forbid its collection and canceled its hens, could plaintiff have recovered one quarter the amount; most certainly not, even though he proved he was the parent of the act and procured its passage. No more can he claim the stipulated compensation for services under the present act. He was entitled to recover what his services were worth and no more. That would be just and equitable. The exception to the refusal to non-suit on the ground was well taken.
    The verdict was for too much. The contract specified four assessments which had been paid, and specified the amount of interest on each which was added to the assessment for the purpose of fixing the amount upon which the percentage to plaintiff, in the event of success, should be computed. In the other two cases the amount of the assessment only is mentioned, although two years interest was due thereon at the date of the contract. The omission of the interest under such circumstances, fixes the amount of those assessments- for the purpose of compensation, and modifies and controls the general language of the contract, in reference thereto.
    Interest upon the assessment is an incident, and no part of the assessment proper, but is in the nature of damages for its non-payment, and in the case of an unpaid assessment could not* be taken into account, under any circumstances, under this form of contract, although the city had a lien upon the land for its non-payment. This principle has been recognized in a variety of cases. The court may grant an extra allowance of costs of five per •cerit. upon the amount in controversy, but interest 'cannot be added to plaintiff’s claim in the action to ascertain the amount in controversy.
    Appeals may be had to the court of appeals in controversies, arising in inferior courts, where the amount involved was $500. But the court of appeals has always held that interest, cannot be added to the recovery or claim, for the purpose of rendering the judgment appeal-able to that court, and so in similar cases of construction.
    The contract of retainer is certainly capable of the interpretation we give it, and in such a case, where the controversy arises between an attorney and his client, “if the meaning is not transparently obvious, if it will admit of a construction favorable to the client, he is entitled to that construction (Hitchings v. Van Brunt, 38 N. Y. 342).

      James A. Peering, in person,
    argued :—I. The contract was severable, and for the reduction of the Boulevard grading assessment the plaintiff was entitled to recover (2 Parsons Contr. 517; Robinson v. Green, 3 Met. 159 ; Swift v. Opdyke, 43 Barb. 274 ; Mayor v. Pyne, 3 Bing. 235 ; Sickels v. Pattison, 14 Wend. 256 ; Tipton v. Feitner, 20 N. Y. 423).
    Performance as to the Riverside park assessment was excused by act of the law. This appears as a fact from the testimony. It is also apparent as matter pf law. The assessment in question was for opening Riverside Park. An “ opening ” is the acquisition of title for the purposes named under the statute, and an assessment for opening is the sum fixed by the commissioners of estimate and assessment and confirmed by the supreme court as the amount of benefit thereof to the parcel assessed. It is in the nature of a judgment, and cannot be reconsidered, reviewed or disturbed in any subsequent action or proceeding (In re Arnold, 60 N. Y. 26 ; De Peyster v. Mali, 92 Ib. 262 ; In re Dept. of Parks, 73 Ib. 560 ; In re Riverside Park, 50 Ib. 493). No proceeding to vacate or set it aside could or can be maintained. As it could not be questioned directly or collaterally an action to recover the same where paid would not lie. To recover back money paid on an illegal assessment there must first be a vacating of the assessment by judicial power (Pyser v. The Mayor, 70 Ib. 497 ; Wilkes v. The Mayor, 79 Ib. 621). t£ the law prevents recovery it excuses performance. It was not necessary to bring a proceeding which could not be prosecuted or maintained with any hope of or reason for success. •
    II. That the special law under which the proceeding was instituted was not in existence when the contract was signed is wholly immaterial. 1st. The plaintiff was by the contract entitled “to take such legal proceedings as to

      him shall seem fit to secure the vacation,” &c., of the assessment. ■ He was not confined to any form of procedure or any court. It was not only the plaintiff’s right, hut his professional duty to take action under the special law-named, when, as it appears by the testimony, no relief could be obtained in the courts. An attorney in the management of a litigation is not confined to the laws in force at the time retained, but should avail himself of all passed during and until the termination thereof. Had the plaintiff obtained the passage of an act directly reducing the assessment, he would have been entitled to payment under the contract. So of services under an act providing a remedy or new form of procedure for the same purpose (In re Knapp, 85 N. Y. 296).
    III. The refusal of the court to direct the jury to render “a verdict for the plaintiff for the sum of $390.03, with interest thereon from December 30, 1882, that being one-fourth of the reduction excluding interest from those items,” was just and proper. The phrase sum or amount “due for said assessments” is readily understood and is not doubtful. An unpaid assessment always includes and carries interest. Both make up the “amount due.”
   By the Court.

Sedgwick, Ch. J.

The first ground claimed for reversing the judgment, was, that the plaintiff’s obligation to take proceedings in the six cases mentioned in the written contract, was entire, and that there could be no compensation for proceedings taken in some of the cases when proceedings had not been taken in the rest. This assumes that plaintiff’s omitting to take proceedings, and such was the case, was a default in a part of his obligation.

The defendant agreed to pay the compensation in consideration of “such service,” in the words of the contract. These words can only refer, to the former clause, “I hereby retain James A. Deering, to take such legal proceedings as to him shall seem fit to secure, etc.” The services were intended to be such as it would be the duty of the lawyer to perform, after a retainer, in respect of its subject matter. The retainer was to take such proceedings as the counsel saw fit. The implication is, that unfit or inefficacious proceedings were not to be taken. It cannot be imagined that the defendant intended to bind the plaintiff to take in defendant’s name, a proceeding, which would end adversely to him, with the burden of paying costs. The plaintiff gave testimony to show that in the cases where he took no proceedings, any proceeding, if taken, would have ended adversely to the defendant. He took proceedings successfully in the other cases. This showed, in my opinion, an entire performance on the part of plaintiff. No question of fact or law was made at the trial as to whether the plaintiff had shown that in the cases where no proceedings were taken, none could have succeeded. The point was, that the plaintiff was bound to take proceedings in all the cases. This is not correct. The defendant’s counsel, however, gave as one of the grounds of a motion to dismiss the complaint, that the plaintiff could not recover, without showing a good reason for not proceeding to remove the other assessments, or to recover back the money. The plaintiff had in fact, in his testimony, given reasons for not proceeding. It was assumed by the plaintiff, that reasons or good reasons must be given. His testimony on this point made at the last a question for the jury.

The next objection is, that the plaintiff did not accomplish anything to entitle him to compensation within the time limited by the contract, which provided that proceedings intended by it must be completely ended by January 1, 1881. The proceedings were not completed at that day, but were continued after it. There was proof that the defendant assented to their going on after the day, and in one particular took part in them. He did not at the time, nor until this action was threatened, claim that the contract was at an end. The contract was not avoided, and the plaintiff could recover compensation under it (Gallagher v. Nichols, 60 N. Y. 448).

It is maintained that the proceedings were successful, by reason of an act passed after the written contract was made, and that the contract was intended by the parties to refer to the state of the law, as ifc was when the contract was made, and that from this consideration, the plaintiff could not recover under the contract, but at the most quantum meruit. Assuming this to be correct, there was evidence in the case that the services were worth the amount that the contract specified. The defendant promised to pay the amount when it was demanded by the plaintiff in the presentation of a bill, and asked the plaintiff to get it, if he could, from another person who held certain moneys that the defendant thought should be applied to the payment of the bill. This promise is circumstantial evidence of the value of the services, and has a peculiar significance in this case where defendant is himself a lawyer. The defendant, however, gave no evidence as to the value of the services.

The plaintiff recovered 25 per cent., not only of the reduction of the amount of the assessment, as it was first made, but also of the reduction of the interest, that followed the reduction of the assessment. This is attacked, on the ground that the contract was, that the percentage should be upon the reduction of the assessment itself. This is sufficiently met by the words of the contract which were 25 per cent, of the amount which the sum due for said assessments shall be reduced.” The sum due for the assessment, comprised the interest upon its first amount.

Judgment affirmed, with costs.

O’Gorman, J., concurred.


text:
    THOMAS H. WILCOX, Appellant, v. PATRICK EGAN, Respondent.

      Decided February 2, 1885.

      Action for damages by vendee against vendor, of real estate for not conveying—Burden of proof—Judgment—impeachment of for non-service.—■ Evidence—Nonconformity of ¡judgment to verdict—practice.

    The complaint after averring the contract, the performance by the vendee of the conditions to be by him performed, and. that the vendor had neglected and refused to perform on his part, further averred that the vendor was unable to perform because he had not good title by reason of the non-service of the summons and complaint in a foreclosure action through which the title was derived, on a party named as a defendant therein. Held, that it was incumbent on the plaintiff as part of his original case, to prove that the party so named was a necessary party and had not been served.
    Where the court is one of general jurisdiction, evidence of the handing of the summons in an action therein, to one M. E. not a party, is not sufficient evidence to show non-service on M. P. who was a party, it not appearing that the judgment proceeded upon such handing to M. E. as-being a service on M. P.; especially is this so when it does not appear that the person so handing the summons was in any way connected with, the judgment plaintiff.
    The remedy, where the judgment does not pursue the verdict or direction of the court, is not by appeal, but by a motion to correct.
    Thus, when the court dismissed a complaint on the ground that the plaintiff had not proved the case averred in the complaint, and without any direction from the court, judgment was entered dismissing the complaint on the merits. Held, the remedy was by motion.
    Before Sedgwick, Ch. J., and O’Gorman, J.
    Appeal by plaintiff from judgment entered upon a dismissal of the complaint at trial term before a jury.
    The action was for damages, for the breach of .a contract to convey real estate, brought by the assignee of the vendee in the contract against the vendor.
    The complaint averred the making, etc. of the contract, the performance by the vendee of all conditions precedent, and the neglect and refusal of the vendee to perform on his part. It further set forth that the vendor was unable' to perform by reason of the fact that he had not good title, etc.
    Further facts appear in the opinion.

      Charles E. Crowell, attorney and of counsel for appellant.

      Jacob Fromme, attorney and of counsel for respondent.
   By the Court.

Sedgwick, Ch. J.

The plaintiff averred in his complaint that the defendant was unable to give good title of the real estate agreed by him to be conveyed,“in that he had not good title to the premises described in said agreement hereto annexed, by reason of the improper service of (a copy) the summons and complaint in a certain foreclosure suit, involving the premises in question,. between Michael Donoho, Michael Donoho, Jr., and Patrick Donoho as plaintiffs, and Jane Lay craft, Mary O’Hara, John O’Hara and another, as defendants, and brought in the supreme court of the state of New York, and through which foreclosure the title to the premises is derived, and in which action none of the parties hereto were parties. That said service purported to have been made on Mary O’Hara, but as matter of fact, it was not so made, but was served and left -with one Mary Evans who was not a party to said action and interested in the premises in any way. And further, that by season of said irregularities in said foreclosure suit, no jurisdiction was obtained.”

The answer averred “that all the necessary parties to said suit were made parties and served with process, all of which will more fully and at large appear by said judgment.”

The plaintiff rested his case upon some vague testimony, that in a conveyance of the property before the foreclosure proceeding, Mary O’Hara had been named as grantee, instead of Mary Hart; that after the foreclosure judgment, this mistake had been corrected, in an undescribed manner, nothing, however, being shown to prove that it was inconsistent with the foreclosure proceeding being regular and obligatory on all parties in interest; that before the judgment of foreclosure, one Lavin, who was not shown to be the agent of the plaintiffs in that action, handed to one Mary Evans, and left with her, a paper which purported to be a summons in an action, in which the mortgagees were plaintiffs and Mary O’Hara and The American Ehnt Glass Company were defendants. Nothing more of importance was proved. There was no affidavit of service by Lavin. The plaintiff refused to put in evidence the judgment in foreclosure, to show on what it proceeded. It was made by a court of general jurisdiction. All presumptions are in its favor, and these presumptions cannot be rebutted, merely by showing that a copy of the summons was handed to a person who was not a party to the suit, especially where it is not shown that the party handing the paper had any authority to act for the plaintiff in the summons. There was an unfounded assumption, that this handing was a service, in the sense of a legal service. I am, therefore, of opinion that the court was right in holding that the plaintiff had not shown that the judgment in foreclosure was irregular or without jurisdiction in those respects, which he alleged in his complaint.

The court excluded papers in a proceeding taken by Mary Evans after the judgment in foreclosure. We cannot proceed to say whether or not that was erroneous, for the contents of these papers are not disclosed so as to show that they were relevant to the issue that was made in this case.

The court dismissed the complaint on the sole ground that the plaintiff had not proved the case averred in the complaint. Without any direction from the court, and without any authority in my opinion, the judgment entered was, after reciting, “the judge having directed the complaint to be dismissed, adjudged that the defendants have judgment herein dismissing the complaint of the plaintiff upon the merits.” This judgment, if it stand, will prevent tho plaintiff from bringing another action for the same cause, or at least it prevents such a question under the Code. The action was at common law. The complaint was dismissed upon the plaintiff’s testimony alone. There is nothing to show, and the. presumption is the other way, that the court assumed to be in possession of the whole of the facts that the trial of the issue would comprise. The entering of the judgment in this form was an act of the clerk, and its defect is not a matter of review now. The remedy would be to move to correct the judgment, and in a proper case to appeal, if necessary, from the order made.

Judgment affirmed with costs, and order denying new trial affirmed with $10 costs, both without prejudice to a motion to correct the form of the judgment.

O’Gorman, J., concurred.


text:
    ANNA B. CRANDALL, Respondent, v. WILLIAM G. G. QUIN, Appellant.

      Decided February 2, 1885.

      Breach of promise to marry.—Evidence, when incompetent.—Acts, conduct and declarations of defendant as affecting damages.

    The defendant, in an action for breach of promise to marry, had married a lady other than the plaintiff, and when he was on the stand as a witness, he was asked, ‘‘And your wife had how large a fortune ?”—Held, that the question was improperly allowed. It did not fall within the rules which allow facts not relevant in themselves to be received in evidence, and was not competent evidence as to defendant’s financial condition.
    Tt is competent to prove, on behalf of defendant, his acts and conduct, and even declarations, after the breach and down to and on the trial, in mitigation of damages, where, under the facts of the particular case, they would have a tendency to limit the damages.
    Before Sedgwick, Ch. J., and Truax, J.
    Appeal by defendant, from judgment entered on verdict of jury.

      The action was for damages from the breach of a promise to marry.
    The facts are sufficiently stated in the opinion.

      Thomas Brennan, attorney and of counsel for appellant,
    on the points decided, argued:—I. It was error to overrule the defendant’s objection and to admit the testimony in relation to the “fortune or income” of defendant’s wife, (a,) The action was not to recover property, but damages for a breach of promise, and whether defendant was rich or poor could make no difference ; as if plaintiff proved a cause of action she would be entitled to recover, regardless of whether defendant was a man of means or not. It would be error to admit the testimony in an ordinary action for the breach of a contract, and it was error to admit it in this action (Dain v. Wyckoff, 3 Sel. 193 ; Kniffen v. McConnell, 30 N. Y. 285). (b.) In any aspect in which the evidence may be looked at it was objectionable. The property of the defendant’s wife was not an issue in the case. The testimony admitted had a tendency to and did prejudice the jury against the defendant in favor of giving larger damages than they otherwise would have given, and the objection to its admission should have been sustained.
    II. The third request to charge the jury should have been charged. The defendant had the legal right to have all his actions and conduct, up to the time of and including his defense and trial, submitted to the jury in mitigation of damages, and the court erred in refusing to charge the request, as well as in the qualified charge as made. The court’s qualified charge confined the jury to a time before the breach, and took away from them the consideration of any subject, act or conduct of the defendant at the time of or since the breach. This clearly was error (Thorn v. Knapp, 42 N. Y. 481; Johnson v. Jenkins, 24 Ib. 254).

      James M. Smith, attorney and of counsel for respondent,
    on the points decided, argued :—The question as to his wife’s fortune put to defendant on his cross-examination was proper in various aspects. The plaintiff had a right to show all the facts and circumstances that would entitle her to large damages, whether compensatory or vindictive; that his motive for deserting her was untruthfully stated; that he was actuated by sordid motives; and that it was a base action on his part.
    The third request the court charged as requested, with the obvious and proper qualification made by the court.
   By the Court.

Sedgwick, Ch. J.

The defendant, after his promise to marry the plaintiff, married another lady. When he was upon the stand as a witness, plaintiff’s counsel asked him. “And your wife had how large a fortune ? ” Against objection, the question was allowed upon two grounds ; first, as showing or tending to show a motive for the defendant’s breach of promise, and second, as tending to show the social and financial condition of the contracting parties. The fact asked for, evidently, was not circumstantial evidence as to the occurrence of the breach, or as to the social condition of the parties, apart from its tending to show such pecuniary condition of defendant, as would result from his wife having a fortune.

Facts not relevant in themselves, are sometimes received in evidence, when the testimony given by opposing parties as to the existence of a material fact, is contradictory. Thus the credibility of the differing witnesses enters into the conflict, as a circumstance. Motive may be shown, as impelling the parties to do or not to do, the thing in dispute.

In this case, the fortune of the wife had nothing to do with the promise, and was not necessary to determine the character of any contradictory testimony as to the breach; for the fact of the defendant’s marriage was conclusive proof of that. As tending to show the financial condition of the defendant, apart from the consideration that his wife’s means would not increase his own property, it was inadmissible, under the case of Kniffen v. McConnell (30 N. Y. 289), which declares that evidence as to the defendant’s property “should be confined to general reputation as to the circumstances of the defendant.” There were several exceptions to the court’s refusals to charge that certain acts and declarations of the defendant which the requests assumed occurred after the breach, and were considerate or respectful to the plaintiff, might be taken by the jury in mitigation and reduction of damages, or in estimating the damages, by way of compensation. As there must be a new trial, it will not be necessary to consider these exceptions in detail. The court charged that the actions and declarations of the kind alluded to, that occurred before the breach, might be considered by the jury in assessing the damages. Practically, the limitation by thé court did not injure the defendant, for the testimony did not disclose that anything was said or done by the defendant after the breach which would have affected the plaintiff’s damages. It may for the purposes of a new trial, be well to say, that attention should be given to the opinion in Thorn v. Knapp (42 N. Y. 474), to the effect “that the jury in such cases, were entitled, when they found the contract of marriage made and broken, to take into consideration all the facts and circumstances of the case, and the conduct of both parties to each other, and particularly the conduct of the defendant in his whole intercourse with and treatment of the plaintiff, in connection with the making and breach of the contract, and afterwards up to and including the defense and trial of the action.” This was said in respect of a charge, that the defendant’s conduct up to and on the trial, might be considered in aggravation of damages. Kniffen v. McConnell, that has been already cited, had a like reference. Additional considerations have to be entertained as respects the mitigation of damages by the acts and declarations of the defendant, which do not pertain to any act or declaration given in evidence by the plaintiff to increase the damages. Whatever, of course, determines what the injury was or will be, cr tends to show what compensation should be given, or what if any, should be exemplary damages, is relevant, if it appear to .the jury, up to the time of the assessment of damages.' If, as matter of fact, any thing done by the defendant would tend to show that the damages should not be so great, as from the other facts in the case it might seem to the jury that they should bé, it should be allowed in evidence. The point would be to determine that it had such a tendency, under the facts of the particular case. This is to be applied to declarations. It is difficult to imagine, that the declarations of defendant, not part of the res gestee, are competent in his own favor, or that it would have any tendency to limit the damages. There may possibly be such a case. It is not necessary to ascertain, if it could be ascertained, that the facts on the new trial will or will not permit the declarations of the defendant after the breach, to be given in evidence, by himself, as pertinent to the matter of damages.

Judgment reversed, new trial ordered, with costs to abide the event.

Tbttax, J., concurred.