Hawley v. Bennett

4 Paige Ch. 163, 1833 N.Y. LEXIS 137, 1833 N.Y. Misc. LEXIS 91

• Court: New York Court of Chancery
• Decided: July 16, 1833
• Status: Published

Opinion

The Chancellor.

An injunction is not dissolved, neither does it become inoperative, by the abatement of the suit in which it issued. But the rule is, that if the suit abates by the death of either the complainant or the defendant, the party against whom the injunction issued, or his representatives, may have an order requiring the complainant, or his representatives, to revive within a stated time, or that the injunction be dissolved. (Duke of Chandos v. Talbot, Sel. Cas. in Chanc. 24. Hill v. Hoare, 2 Cox’s Cas. 50.) Where a suit abates by the death of the complainant, those who succeed to his rights may apply to the court to punish a breach of an injunction, which has taken place either before or after his death, as soon as they have taken the preliminary steps to revive the suit, either by filing a bill of revivor, or otherwise. And it is not necessary for them to wait until a decree of revivor is actually obtained.

So far as the rights of a party have been affected by the breach of an injunction, it is no .defence to the person who has been guilty of violating the same, that he did it under the advice of counsel; although, if he has acted in good faith, it may be sufficient to protect him from punishment as for a criminal contempt. The rights of parties must be protected against the wrongful acts of the adverse party, although he may have acted under the advice of counsel. And his remedy, if any, must be against his counsel, who have misled him by then-improper advice.

It is evident, from the affidavits in this case, that the defendant has been guilty of a breach of the injunction, to the injury of the adverse party. The revised statutes, however, have made a distinction between criminal contempts, and proceedings as for contempts to protect the rights and remedies of parties. And where a person applies to the court to punish a party for a breach of an injunction, in the nature of a civil remedy, he must show that he has some interest in the subject matter of the injunction, or that he has a right to prosecute for the breach thereof; except in the case of infants, lunatics, &c. who are unable to protect their own rights. The preliminary objection in this case therefore is well taken; that it does not appear from any of the papers upon which this order was founded, or which have been served on the adverse party, that the persons who obtained that order have any interest in the subject matter of the suit in which the injunction issued, or have any authority to prosecute for a breach thereof. They should, either by petition or affidavit, have showed that W. James was dead, and that they had succeeded to his rights in relation to the subject matter of the suit, and had taken the preliminary steps to revive the suit. The order to show cause must therefore be discharged; but without costs, and without prejudice to the right of the complainants to renew their application upon proper papers, showing their right to prosecute for the alleged breach of the injunction, as well as the breach itself.