Anderson v. Smitley

141 A.D. 429, 126 N.Y.S. 31, 1910 N.Y. App. Div. LEXIS 3881

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 2, 1910
• Docket: No. 2
• Status: Published

Opinions

Scott, J.:

We have held in Anderson v. Smitley, No. 1 (141 App. Div. 421), decided herewith, that the injunction contained in the final decree entered on October 13, 1903, in the action then pending, is an effectual bar to the prosecution of the action commenced by plaintiff in May, 1908. It is but a single step further and a necessary corollary to hold that the bringing of the second action is a violation of the injunctive clause of the previous decree, and a contempt of court. The appellants’ motion to punish plaintiff as for a contempt must, therefore, be granted, the proceedings on the part of the plaintiff in the second-action stayed, and plaintiff specifically restrained from further prosecuting it.

The Order should be reversed, with ten dollars costs and disbursements, and motion granted as above indicated.

Ingraham, P. J.; McLaughlin and Dowling, JJ., concurred ; Laughlin, J., dissented.