Gurnee v. Odell

13 Abb. Pr. 264

• Court: New York Supreme Court
• Decided: November 15, 1861
• Status: Published

Opinion

Allen, J.

—The defendant Odell has leave to renew his motion to dissolve or modify the injunction-order in this cause, “ after he shall have served affidavits in such action, sufficient to clear himself” of certain misconduct, alleged against him in the violation of the order.

As the removal of the boat from the place where she was at the time of the service of the injunction, and indeed from the harbor of ISTew York, and sending her to Buffalo "in the prosecution of the business in which she had been and was employed, was not denied or disputed, the conditions imposed as the terms of renewing the motion could not have contemplated a literal purging of the contempt, or denial of the alleged breach of the iuj unction, but was intended merely to require the defendant to purge himself of any wilful contempt of this court. The defendant had not been adjudged guilty of a contempt, but was simply charged, by the affidavits in opposition to the motion, with disrespectful threats to disregard the injunction, and a subsequent disregard of it, apparently in pursuance of such threats.

The language is denied by the defendant, although it is not improbable that in his excitement he may have used language to the effect, or similar to that charged upon him; but he disclaims all intentional disrespect to the court or its powers, and he at once set about procuring a modification of the order. His subsequent removal of the boat is not very satisfactorily explained; and yet his explanation and all the circumstances are entirely consistent with the absence of all intent to violate the injunction to the prejudice of the plaintiff, or in contempt of this court. The injunction-order was very stringent, and incapable, perhaps, of a literal observance; for the boat would not have been permitted to remain, under the spirit of the charter, where she chanced to be at the time of the serving of the injunction; and to lay up the boat in the harbor of Hew York, just at the close of navigation, with barely time for another trip to and from Buffalo, and at a time when freights were very high, would have produced a serious loss to the defendant, should he eventually succeed in the action. A detention for a very brief period would have caused the loss of the trip, and the undertaking is entirely insufficient in amount to indemnify the defendant for his loss. The rights of the parties have yet to be ascertained, and the power of the court ought not to be so employed as to work a possible injury to either: and no injustice will be done by considering the motion, and leave the plaintiff to his remedy by proceeding against the defendant for the alleged contempt.

Upon the merits, there can be no question that the injunction should be modified. It is not necessary to the protection of the plaintiff, that the boat should be laid up during the litigation. It is proposed that the defendant should be enjoined from disposing of, or encumbering the boat; and if the plaintiff is entitled to any other provisional remedy, it is by the appointment of a receiver, upon a proper case being made. So long as the defendant is charged with a contempt, and that contempt is not fully purged, the order of injunction ought not to be entirely dissolved, and should be only so far modified as to prevent great loss or serious injury to the party. I do not, therefore, concede the grounds urged for a dissolution of the injunction, either for irregularity or upon the merits. At least the defendant should be permitted, if not enjoined, to return the boat to the harbor of Hew York, as that would very likely be enjoined upon him, should he he convicted of a contempt; but I am of the opinion that the inj unction should be modified so far as to permit the defendant to employ the boat in the usual and customary method upon the canals of this State,- and the Hudson River, not removing- the same from or taking her without the State—hut without prejudice to any proceedings against the defendant for a violation of the said injunction heretofore committed.

An injunction may be entered accordingly..