Greite v. Hendricks

New York Supreme Court

Greite v. Hendricks

24 N.Y.S. 546, 78 N.Y. Sup. Ct. 11, 53 N.Y. St. Rep. 852, 71 Hun 11

New York Supreme Court·Decided July 28, 1893·Published·Cited by 11 cases

Opinion

BARNARD, P. J.

A judgment was obtained by the plaintiff against the defendant Charles Hendricks on the 19th of November, 1892, restraining him from carrying on a saloon business. The case was tried in October, 1892, and the decison was filed on the 5th of November, 1892. Pending the trial the defendant Hendricks threatened, to evade an adverse decision, that he would sell to one O’Connell the business, and that it should not be shut up, no matter what the court decided. A day or two before the entry of judgment he did sell the business to O’Connell, and it continued under O’Connell’s name thereafter. Hendricks owned the title to the real estate, and had covenanted that he would not carry on a saloon business within a half mile of the same for five years from January 1, 1891. The covenant he had received a large price for, and his violation of it caused a large loss to the plaintiff, who was carrying on a similar business on premises adjoining. The covenant had been given upon a sale of the business on the defendant’s premises, but he had forced the plaintiff to lease the same, in gross violation of the spirit of the covenant. The court adjudged that he was guilty of contempt, and directed his commitment to jail unless he undid his transfer with O’Connell, and paid the costs of the motion. The appeal is from this order, and it seems that the appeal is premature. The final order should be awaited, and an appeal taken from that. Brinkley v. Brinkley, 47 N. Y. 40; Code § 2281; In re Crosher, (Sup.) [547] 11 N. Y. Supp. 504. If the appeal is proper, the order should be sustained. It is true that the formal service of the judgment was not made until after the transfer to O’Connell, but this transfer was made upon avowed purpose of rendering the judgment idle. He actively interfered to make a judgment of the court nugatory, and therefore was guilty of a contempt. King v. Barnes, 113 N. Y. 476, 21 N. E. Rep. 182. The forbidden acts were continued after the service of the order.

The order should be affirmed, with costs and disbursements.

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BARNARD, P. J.

A judgment was obtained by the plaintiff against the defendant Charles Hendricks on the 19th of November, 1892, restraining him from carrying on a saloon business. The case was tried in October, 1892, and the decison was filed on the 5th of November, 1892. Pending the trial the defendant Hendricks threatened, to evade an adverse decision, that he would sell to one O’Connell the business, and that it should not be shut up, no matter what the court decided. A day or two before the entry of judgment he did sell the business to O’Connell, and it continued under O’Connell’s name thereafter. Hendricks owned the title to the real estate, and had covenanted that he would not carry on a saloon business within a half mile of the same for five years from January 1, 1891. The covenant he had received a large price for, and his violation of it caused a large loss to the plaintiff, who was carrying on a similar business on premises adjoining. The covenant had been given upon a sale of the business on the defendant’s premises, but he had forced the plaintiff to lease the same, in gross violation of the spirit of the covenant. The court adjudged that he was guilty of contempt, and directed his commitment to jail unless he undid his transfer with O’Connell, and paid the costs of the motion. The appeal is from this order, and it seems that the appeal is premature. The final order should be awaited, and an appeal taken from that. Brinkley v. Brinkley, 47 N. Y. 40; Code § 2281; In re Crosher, (Sup.) [547] 11 N. Y. Supp. 504. If the appeal is proper, the order should be sustained. It is true that the formal service of the judgment was not made until after the transfer to O’Connell, but this transfer was made upon avowed purpose of rendering the judgment idle. He actively interfered to make a judgment of the court nugatory, and therefore was guilty of a contempt. King v. Barnes, 113 N. Y. 476, 21 N. E. Rep. 182. The forbidden acts were continued after the service of the order.

The order should be affirmed, with costs and disbursements.

Greite v. Hendricks, 24 N.Y.S. 546, 78 N.Y. Sup. Ct. 11, 53 N.Y. St. Rep. 852, 71 Hun 11 (N.Y. Super. Ct. 1893).

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