Jones v. Burgess

109 A.D. 888, 96 N.Y.S. 873

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1905
• Status: Published

Opinion

Hooker, J.:

The- record contains .appeals, from two .orders,- one, denying a; motion to punish the defendant and his attorney, for contempt, and-the other. directing that the plaintiff accept service .of -¡an order extending defendant’s time to answer. In relation to the latter, it appears in the affidavit of the plaintiff himself,.read in opposition to the motion,-that he lias signified his willingness to receive the defendant’s answer,,' and since the granting of the motion the answer has been served, and the plaintiff has received and admitted service thereof. Under the circumstances the question becomes academic, and this court will not pass upon it. The appeal from the order granting the motion directing the plaintiff to accept service of the order extending defendant’s time should, therefore, be dismissed, without costs.

The other order should be modified. Prior to the commencement of tke.action the defendant had commenced a summary proceeding against the plaintiff, his tenant, which was tried before a jury in Justice’s Court,, and in this proceeding the plaintiff was partially successful. The defendant threatened to. bring other proceedings of similar nature in disregard of what the plaintiff claimed had been established in that proceeding. Plaintiff commenced this action in equity asking for a decree restraining the defendant, his attorneys and agents from prosecuting further summary proceedings against him; that full force and effect might be given to the final order in the summary proceeding already prosecuted; that an account be stated between the parties, and that th.e defendant, his attorneys and agents be restrained from interfering with plaintiff’s water supply in the demised premises over which the defendant seemed to have physical control and which he had threatened to impair. At the time of the commencement of this action the plaintiff moved, by an order to show cause, for a temporary injunction, and 'the order contained a temporary injunction which should have force until the hearing and determination of the motion. Upon the hearing of the motion the court directed that, the. injunction should continue during tlie pendency of the action, provided' the plaintiff file Ms bond in the sum of $1,000 to protect the rights and interests of the defendant, and that the bond should be furnished within five days. The plaintiff failed to enter the order, and after the expiration of twenty-four hours the defendant’s attorney entered an order which provided that the bond should.be filed by the plaintiff within five days after the entry of the order and service of a copy thereof upon the plaintiff. The defendant served what purported to be a copy of the order, as. entered, but the same was not folioed, although more than two folios in length. .(General Rules of Practice, rule 19.) The plaintiff promptly returned the copy of the order that had been served upon him, with sufficient indorsement apprising the defendant that it was returned,, among other reasons, because the order exceeded two folios in length and was not folioed. Instead of entering an order properly folioed and serving that upon the plaintiff, thereby limiting',tlie plaintiff’s time within which he might file his bond, the defendant undertook to institute other summary proceedings immediately after, the'expiration of the five days after'tln: pretended service upon the plaintiff, supposing, no doubt, that the injunction was no- longer in forcei by reason of the plaintiff’s failure to file his bond. The plaintiff immediately prepared papers upon which to move that the'defendant and his attorney be punished for contempt of court on account of their violation of the temporary injunction which restrained them from bringing other similar proceedings. Before the .completion of these papers, however, and before the order, to show cause was served, the precept of the summary proceeding was Withdrawn and countermanded by the defendant’s attorney, and at the time of tlie noticing of the motion and at the time of its argument there was pending against the plaintiff no summary proceeding instituted by the defendant. Upon the argument of the motion to punish for cofitempt the court denied it and. vacated the order of injunction. That part of the order which denied the motion to punish for contempt was, in our .opinion, correctly disposed of. Had the motion been. granted' it would have been necessary for the court to liáve found that a right or remedy of the plaintiff had been defeated, impaired, impeded or prejudiced by 'the conduct of the defendant. (Code Civ. Proc. §§ 14, 2266.) It evidently -was clear to the learned court' at Special Term, as it is to ..us, that although the' summary" proceeding was actually instituted, its withdrawal and the'couñtermanding of the precept issued therein, under the circumstances disclosed by the record, rendered groundless a. claim that any right or remedy of, the plaintiff had, been defeated or prejudiced.

The court was, however, without authority to direct that the injunction order be vacated. The motion was,one by the plaintiff upon an order to show cause to punish the defendant and his-attorney for contempt and “ for such other different or further relief as may be just.” The defendant did not serve any counter notice to the effect that he would ask for a vacation of the injunction order, nor did he serve affidavits touching the question of the propriety of a further continuance of the injunction. Had the defendant sought or wished to procure a vacation of the injunction the plaintiff was entitled to notice in due form of his intention to move, in that respect and to an examination of such affidavits, if any, as the defendant desired to read upon the motion. This practice did not obtain. Upon the plaintiff’s motion to punish for contempt on account of an alleged violation of the injunction order, the injunction order itself should not have been vacated without some proper notice- to the plaintiff that the court would be .asked for that relief. In general the practice has always required notice to the opposing party of a motion. The dissolving of the injunction was no' part of plaintiff’s motion to punish,for contempt on account of a violation of its. terms, and could not possibly be justifiéd under plaintiff’s prayer for general relief in his order to show cause. The practice of granting relief on motions which is not within the purview of the notice or notices served should not receive the approval of the courts; its dangers are- apparent, and it does not make for the orderly administration of the law. Analogous to this question was one presented in Garde v. Sheldon (3 Barb. 232), where it was said : “ It is irregular to grant affirmative relief to a party opposing a motion, upon matters appearing in the opposing papers, which the moving party has had no opportunity to answer.”

The order denying the motion to punish for contempt and vacating the injunction order should, therefore, be modified by striking therefrom the provision in relation to the vacation of the injunction, and as so modified affirmed, without costs.

Bartlett, Jenks, High and Miller, JJ., concurred.

The appeal from the order granting the motion directing the plaintiff to accept seiwice of the order extending defendants’ time to answer dismissed, without costs. Order -denying motion to punish for contempt and vacating the injunction order modified by striking therefrom the provision in relation to the vacation of the injunction, and as so modified affirmed, without costs.