Bachman v. Harrington

• Decision Date: 17 April 1906
• Citation: 184 N.Y. 458,77 N.E. 657
• Parties: BACHMAN v. HARRINGTON.
• Court: New York Court of Appeals Court of Appeals

184 N.Y. 458

77 N.E. 657

BACHMAN

v.HARRINGTON.

Court of Appeals of New York.

April 17, 1906.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Max Bachman against Charles H. Harrington, president of the Rochester Musicians' Protective Association. From an order of the Appellate division (95 N. Y. Supp. 1113,108 App. Div. 357), permitting an order adjudging defendant guilty of contempt, defendant appeals by permission. Reversed.

George D. Forsyth, for appellant.

Hugh J. O'Brien, for respondent.

CULLEN, C. J.

The plaintiff, a member of the Rochester Musicians' Protective Association, an unincorporated association, was suspended from his membership. Thereupon he brought this action against the defendant, as president of the association, alleging the illegality of the action of the association which resulted in his suspension, and prayed judgment for a mandatory injunction ordering that he be reinstated as a member in good standing, and restraining the defendant from taking further steps towards the prosecution of the plaintiff, and from suspending or expelling him, and from denying to him any of the benefits of membership in the association, and preventing or attempting to prevent members of the association by threats, persuasion, speech, writing, or otherwise, from working with or for the plaintiff, and also for damages on account of his suspension. On this verified complaint an injunction was granted; the injunction order, the disobedience of which is the subject of this proceeding, was granted by a judge of the court ex parte, but with an order to show cause why it should not be continued.

The material part of the order is the following: ‘That he, they (agents, servants, etc.), and each and every one of them, do absolutely desist and refrain from denying to the plaintiff any of the benefits of membership in said Rochester Musicians' Protective Association; from suspending or expelling the plaintiff; from taking further steps towards the prosecution of the plaintiff for the alleged violation of article 13, § 14, of the by-laws of said association; from preventing or attempting to prevent members of said association by threat, persuasion, speech, writing, or otherwise from working with or for the plaintiff in his profession; from preventing or attempting to prevent the plaintiff obtaining work, in his profession; from threatening other members of said association with expulsion, suspension, or fines if they work for or with the plaintiff; and on motion of O'Brien & O'Brien, plaintiff's attorneys, the defendant as president of said Rochester Musicians' Protective Association, it is further ordered, under the penalties by law prescribed, that he immediately reinstate said plaintiff as a member in good standing of said Rochester Musicians' Protective Association, and that the defendant as such president take no steps whatever to deny to said plaintiff all and every privilege of membership in said association pending the further order of this court in the premises; and let the defendant show cause at a Special Term of this court, to be held at the courthouse, in the city of Rochester, on the 6th day of May, 1905, why the injunction order herein granted should not be continued pending the determination of this action. Dated May 3, 1905.’

Thereafter the plaintiff instituted these proceedings to punish the defendant for contempt, on affidavits tending to show that the defendant had violated the injunction order in many respects. Counter affidavits were submitted by the defendant. The learned Special Term acquitted the defendant of the charge of disobedience in every respect but one. As to the exception, it found that the ‘defendant wholly failed, neglected, and refused to reinstate the plaintiff as a member in good standing of said defendant association in violation of said order.’ It also found that such disobedience prejudiced the rights of the plaintiff, and imposed a fine upon the defendant of the sum of $160, to be paid to the plaintiff as indemnity. This order was affirmed by the Appellate Division, which has allowed an appeal to this court and certified two questions: ‘First. Was that portion of the original injunction order granted by a justice of the Supreme Court on the 3d day of May, 1905, which required the defendant association immediately to reinstate the plaintiff as a member in good standing, void? Second. Can the defendant, an unincorporated association, be convicted of a contempt of court upon the facts appearing in the record herein?’

It is to be first observed that the proceeding before us is to punish the defendant, not for a criminal contempt, but for a civil contempt. In the first class of contempts punishment is imposed for the outrage on the majesty of the law and the authority of the court, and any fine goes to the people. In the second case the proceeding is instituted for the violation of the private right, and a fine is imposed to be paid to the plaintiff as indemnity for the violation of that right. People ex rel. Munsell v. Court of Oyer and Terminer, 101 N. Y. 245, 4 N. E. 259, 54 Am. Rep. 691. Therefore, accepting to its fullest extent the doctrine declared in People ex rel. Gaynor v. McKane, 78 Hun, 154, 28 N. Y. Supp. 981, of the power of the court to punish as for a criminal contempt the violation of an injunction order, even though the complaint fails to state a good cause of action, that doctrine has no application to the present case. Of course, the question before us is as to the power of the court, not as to the propriety of its action. If, on the papers presented, the court had authority to make the order that the defendant forthwith reinstate the plaintiff as a member of the association, though it erred in making the order, the defendant was propertly convicted. But if the court had no authority to make that order, then the defendant should not be punished. It is well settled by repeated decisions of this court that in this state a court of equity has no inherent absolute power to grant interlocutory injunctions, but that authority therefor must be found in the Code of Civil Procedure. Fellows v. Heermans, 13 Abb. Prac. (N. S.) 9;Spears v. Mathews, 66 N. Y. 128;Erie Ry. Co. v. Ramsey, 45 N. Y. 637;People ex rel. Morris v. Randall, 73 N. Y. 416;Gardner v. Gardner, 87 N. Y. 18;Jackson v. Bunnell, 113 N. Y. 216, 21 N. E. 79;People ex rel. Cauffman v. Van Buren, 136 N. Y. 252, 32 N. E. 775,20 L. R. A. 446. The subject is regulated by sections 603 and 604 of the Code of Civil Procedure, which provide:

‘Sec. 603. Injunction, When the Right Thereto Depends upon the Nature of the Action. Where it appears, from the complaint, that the plaintiff demands and is entitled to a judgment against the 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, an injunction order may be granted to restrain it. The case, provided for in this section, is described in this act as a case where the right to an injunction depends upon the nature of the action.

‘Sec. 604. When the Right Thereto Depends upon Extrinsic Facts. (Amended by chapter 416, p. 412, Laws 1877.) In either of the following cases an injunction order may also be granted in an action: 1. 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, an injunction order may be granted to restrain him therefrom. 2. Where it appears, by affidavit, that the defendant, during the pendency of the action, threatens, or is about to remove, or to dispose of his property, with intent to defraud the plaintiff, an injunction order may be granted, to restrain the removal or disposition.’

In the present case the defendant being a voluntary association, the action for reinstatement was properly brought in equity, though as to a corporation the remedy would be by mandamus. But reinstatement in the association was the final relief sought. So far as the complaint sought to restrain the enforcement of his suspension against the plaintiff, the case falls within section 603, and the court had power to restrain by temporary injunction the same acts...