State v. Fuller

• Decision Date: 10 December 1968
• Docket Number: AFL-CIO
• Citation: State v. Fuller, 296 N.Y.S.2d 37, 31 A.D.2d 71 (N.Y. App. Div. 1968)
• Parties: , 59 Lab.Cas. P 51,998 In the Matter of the STATE of New York, Respondent, v. Robert FULLER, Individually and as President of Local 69, Creedmoor State Hospital, American Federation of State, County and Municipal Employees,, et al., Appellants, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 37

296 N.Y.S.2d 37

31 A.D.2d 71, 59 Lab.Cas. P 51,998

In the Matter of the STATE of New York, Respondent, v. Robert FULLER, Individually and as President of Local 69 Creedmoor State Hospital, American Federation of State, County and Municipal Employees AFL-CIO, et al., Appellants et al., Respondents.

Supreme Court, Appellate Division, Second Department.

Dec. 10, 1968.

Julius Topol, New York City (William Kleinman, Brooklyn, of counsel), for appellants.

Louis J. Lefkowitz, Atty. Gen. (Mark T. Walsh, Asst. Atty. Gen., of counsel), for petitioner-respondent.

Before BELDOCK, P.J., and CHRIST, BRENNAN, RABIN and HOPKINS, JJ.

PER CURIAM.

By order dated November 29, 1968, appellants have been adjudged guilty of criminal contempt of court by reason of their wilful disobedience on November 18 and 19, 1968 of the temporary restraining provisions of an order dated November 14, 1968, as supplemented by an order dated November 16, 1968, which enjoined and restrained them 'from engaging in a strike or withholding services, or causing, instigating, threatening, encouraging or condoning a strike against the petitioner * * *.' Appellant Roberts has been sentenced to 30 days in jail and fined $250; appellant Fuller has been sentenced to 20 days in jail and fined $125; and appellant Local 69 has been fined $1,000.

The order of November 29, 1968 should be affirmed. We considered the Attorney General's application for a preliminary injunction as one made under section 211 of the Civil Service Law; and we hold that the court below had jurisdiction to issue the temporary restraining order of November 14, 1968 as ancillary to the action or proceeding thus instituted and subsequently validly commenced by the service of the order to show cause on appellants (CPLR 304, 403, subd. (d)).

The fact that the instant matter was removed to the United States District Court on November 15, 1968 (pursuant to U.S.Code, tit. 28, § 1441 et seq.) did not cause the order of November 14, 1968 to lose its character as an order of the Supreme Court of the State of New York. That order remained in full force and effect (U.S.Code, tit. 28, § 1450; cf. Bondurant v. Watson, 103 U.S. 278, 288, 26 L.Ed. 447); and, while the courts of this State may not have had jurisdiction to proceed further while the matter was pending in the District Court (Lowe v. Jacobs, 243 F.2d 432, cert. den. 355 U.S. 842, 78 S.Ct. 65, 2 L.Ed.2d 52), that disability ceased when the matter was remanded to the Supreme Court, Queens County, on November 18, 1968 and thereafter that court had complete authority to punish appellants for their wilful violation of its order.

It is not clear that appellants, in the court below, raised the objection that the issuance of the temporary restraining order ex parte was in violation of their constitutional rights; and it is doubtful, therefore, that it may be advanced on this appeal (cf. Matter of Leogrande v. State Liq. Auth. of State of N.Y., 19 N.Y.2d 418, 280 N.Y.S.2d 381, 227 N.E.2d 302; Matter of Andersen, 178 N.Y. 416, 70 N.E. 921; Von Diezelski v. Food Fair Stores, 18 A.D.2d 724, 236 N.Y.S.2d 603). If it be assumed, however, that the question is properly before us, we are of the opinion that appellants' argument is without merit. Carroll v. President and Commissioners of Princess Anne (393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325 (Nov. 19, 1968)), relied upon by appellants, does not compel a contrary conclusion. As that case recognizes, there is a place in our jurisprudence for the issuance of ex parte restraining orders of short duration. The order in the instant case is of that character. Unlike the order in the Carroll case (supra), which enjoined certain actions for a period of 10 days, the order here, made on November 14, 1968 and not served until November 16, 1968, merely enjoined appellants from taking the prohibited action until the hearing of petitioner's application for an injunction. Moreover, a fundamental distinction exists between this case and Carroll, in that it appears that the restraining order there could only be attacked by a motion on notice,...