G-bay, J.
The statement of facts has been made thus full, in order that, by exhibiting the various proceedings and acts in some detail, the objections of the appellants may be at once more clearly understood and deprived of any seeming force. We think that the order of the Supreme Court was warranted by the facts and that that court could not very well have held otherwise with respect to the conduct of the defendants. That our decision could have been misunderstood, or understood by the appellants as they say it was, is difficult for us to believe. There was neither uncertainty, nor ambiguity, in the direction by this court for the affirmance of the order of December Hit. The order that was affirmed directed the issuance of a writ, commanding the defendants to disregard the so-called JVIylod return, in issuing their certificate of election, and, instead thereof, to consider only such return as might thereafter be filed containing the signatures of the county clerk, etc., and issued under his seal, and that in their certificate of election the state board should declare that person elected who appeared to have received the greatest number of votes, etc., etc. The only respect in which we differed from the court below, respecting its order, was in that it required a return from the county board of canvassers to be certified by, or to come from, the county clerk. For reasons given, under the circumstances we held that to be an unnecessary requirement for the validity of the statement of the county board of the result of their canvass. So far, therefore, as the order appealed from described the kind of return which might be considered, we changed, or modified, it; but we affirmed it in every other respect and the order stood unaffected, as a direction to disregard the Mylod return. With that order approved and affirmed by this court, and containing the judgment of the court upon the right to consider the Mylod return, the appellants should have complied. Hot only did the order, which we made as the result of our consideration of the appeal, call upon the appellants to comply with the requirements of the order for the writ of mandamus,— a compliance which their stipulation should have impelled them to,
without waiting for the issuance of the formal writ; — but the opinion of the court, which was read by (or to) them, informed them, in distinct language, that they could consider any other return, containing the result of the legal action of the county board, and that the return attested by Mylod, though not invalidated by the refusal of the county clerk to sign and certify it, contained, according to uncontradicted allegations, the result of an illegal and erroneous canvass, which would alter the result of the election and which the court should not permit to be canvassed. There was nothing in the modification in our order, nor suggestion in the language of the opinion, that left the defendants at liberty, legally or morally, to consider the order reversed, or changed, in its-direction as to the Mylod return. They could not consider that return. They could consider any other return showing the correct result of the canvass. This was plain from the order and was the clear expression of our opinion.
The appellants object, however,' upon other grounds, not related to the question of the meaning of our decision. They object that no writ of mandamus was either granted or served, under the order of December 7th, 1891. That is immaterial, as it concerns the question of whether the defendants have deliberately done something which they knew the court had decided they should not do- and had thus neglected, or violated a duty, which the court would have, through the form of a writ prescribed by the statute, enjoined upon, or have commanded them to perform, had the stipulation, which they made upon the granting of the court’s order for the writ of mandamus, not prevented the actual issuance of that writ. What constitutes the contempt here is that the defendants, knowing of the order for the issuance of a peremptory writ - of mandamus, have done the very thing which the issuance of the writ was intended to-absolutely prevent, and have thus contemned and defeated the will of the court. It is no new principle that a person may be held guilty of the offense of contempt, for having done an act after the court had decided to enjoin its doing;
although that decision had not been formally and technically carried out, or formulated, into an order or writ. (See
Hull
v. Thomas, 3 Edw. Ch. 236, and English cases cited there. Also, the remarks of Johnson, J., in
People
v.
Sturtevant
(9 N. Y. at p. 278).
The appellants further say that the order was not one, which it was in the power of the Supreme Court to make at Special Term. It is true that we have held that section 605 of the present Code of Civil Procedure applies, where the object of the proceeding is to restrain state officers, or boards, and requires the injunction order to issue at the General Term.
(People ex rel. Derby
v.
Rice,
129 N. Y. 461.) It is not, however, for the appellants to question the effect of the order of December 7th, 1891, on any such ground. Their formal stipulation was an acknowledgment of the order and they cannot now be heard to assail the jurisdiction of the court to make it. It was possible that it might have been decided, upon the hearing, or in the course of the appeals from it, that it was improperly issued; but it was not so decided and it was affirmed by the General Term of the Supreme Court and then, finally, by this court. It stood as a valid order, whether correctly decided or not, and was entitled to the respect and the obedience of all parties upon whom it was to operate. It is no sufficient excuse for the conduct of parties, who have neglected or disobeyed an order of the court after appealing from it and after stipulating to proceed in accordance with the decision of the appellate court, to say that there was no jurisdiction to make such an order. It is true that jurisdiction cannot be conferred by consent of parties; but a question relating to the authority of a branch of the court to make the particular order may be effectually waived. The Supreme Court had jurisdiction of the parties, although the authority to order the writ of mandamus may have been vested in the General Term. Beyond that consideration, however, it is evident that the offense of the defendants was not only in a disobedience of the order of December 7th, 1891, but, also, in the evasion of their stipulation
and in their disregard of our decision. It is necessary, in the orderly administration of justice, that our will, as that of the courts below, be respected, when communicated to the parties to an action or proceeding. Both with respect to this point and to the preceding point discussed, it may, again, be observed that the defendants, by their formal stipulation, estopped themselves from objecting either to the non-issuance of the writ of mandamus, or to the right of the court to order its issuance. The appellants argue that the remittitur of this court containing our decision had not been filed in the Supreme Court and an order entered making our decision the determination of the Supreme Court; with the result, as they say, that, by our modification of the order, it had ceased to exist as such and there could have been no disobedience of it.
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G-bay, J.
The statement of facts has been made thus full, in order that, by exhibiting the various proceedings and acts in some detail, the objections of the appellants may be at once more clearly understood and deprived of any seeming force. We think that the order of the Supreme Court was warranted by the facts and that that court could not very well have held otherwise with respect to the conduct of the defendants. That our decision could have been misunderstood, or understood by the appellants as they say it was, is difficult for us to believe. There was neither uncertainty, nor ambiguity, in the direction by this court for the affirmance of the order of December Hit. The order that was affirmed directed the issuance of a writ, commanding the defendants to disregard the so-called JVIylod return, in issuing their certificate of election, and, instead thereof, to consider only such return as might thereafter be filed containing the signatures of the county clerk, etc., and issued under his seal, and that in their certificate of election the state board should declare that person elected who appeared to have received the greatest number of votes, etc., etc. The only respect in which we differed from the court below, respecting its order, was in that it required a return from the county board of canvassers to be certified by, or to come from, the county clerk. For reasons given, under the circumstances we held that to be an unnecessary requirement for the validity of the statement of the county board of the result of their canvass. So far, therefore, as the order appealed from described the kind of return which might be considered, we changed, or modified, it; but we affirmed it in every other respect and the order stood unaffected, as a direction to disregard the Mylod return. With that order approved and affirmed by this court, and containing the judgment of the court upon the right to consider the Mylod return, the appellants should have complied. Hot only did the order, which we made as the result of our consideration of the appeal, call upon the appellants to comply with the requirements of the order for the writ of mandamus,— a compliance which their stipulation should have impelled them to,
without waiting for the issuance of the formal writ; — but the opinion of the court, which was read by (or to) them, informed them, in distinct language, that they could consider any other return, containing the result of the legal action of the county board, and that the return attested by Mylod, though not invalidated by the refusal of the county clerk to sign and certify it, contained, according to uncontradicted allegations, the result of an illegal and erroneous canvass, which would alter the result of the election and which the court should not permit to be canvassed. There was nothing in the modification in our order, nor suggestion in the language of the opinion, that left the defendants at liberty, legally or morally, to consider the order reversed, or changed, in its-direction as to the Mylod return. They could not consider that return. They could consider any other return showing the correct result of the canvass. This was plain from the order and was the clear expression of our opinion.
The appellants object, however,' upon other grounds, not related to the question of the meaning of our decision. They object that no writ of mandamus was either granted or served, under the order of December 7th, 1891. That is immaterial, as it concerns the question of whether the defendants have deliberately done something which they knew the court had decided they should not do- and had thus neglected, or violated a duty, which the court would have, through the form of a writ prescribed by the statute, enjoined upon, or have commanded them to perform, had the stipulation, which they made upon the granting of the court’s order for the writ of mandamus, not prevented the actual issuance of that writ. What constitutes the contempt here is that the defendants, knowing of the order for the issuance of a peremptory writ - of mandamus, have done the very thing which the issuance of the writ was intended to-absolutely prevent, and have thus contemned and defeated the will of the court. It is no new principle that a person may be held guilty of the offense of contempt, for having done an act after the court had decided to enjoin its doing;
although that decision had not been formally and technically carried out, or formulated, into an order or writ. (See
Hull
v. Thomas, 3 Edw. Ch. 236, and English cases cited there. Also, the remarks of Johnson, J., in
People
v.
Sturtevant
(9 N. Y. at p. 278).
The appellants further say that the order was not one, which it was in the power of the Supreme Court to make at Special Term. It is true that we have held that section 605 of the present Code of Civil Procedure applies, where the object of the proceeding is to restrain state officers, or boards, and requires the injunction order to issue at the General Term.
(People ex rel. Derby
v.
Rice,
129 N. Y. 461.) It is not, however, for the appellants to question the effect of the order of December 7th, 1891, on any such ground. Their formal stipulation was an acknowledgment of the order and they cannot now be heard to assail the jurisdiction of the court to make it. It was possible that it might have been decided, upon the hearing, or in the course of the appeals from it, that it was improperly issued; but it was not so decided and it was affirmed by the General Term of the Supreme Court and then, finally, by this court. It stood as a valid order, whether correctly decided or not, and was entitled to the respect and the obedience of all parties upon whom it was to operate. It is no sufficient excuse for the conduct of parties, who have neglected or disobeyed an order of the court after appealing from it and after stipulating to proceed in accordance with the decision of the appellate court, to say that there was no jurisdiction to make such an order. It is true that jurisdiction cannot be conferred by consent of parties; but a question relating to the authority of a branch of the court to make the particular order may be effectually waived. The Supreme Court had jurisdiction of the parties, although the authority to order the writ of mandamus may have been vested in the General Term. Beyond that consideration, however, it is evident that the offense of the defendants was not only in a disobedience of the order of December 7th, 1891, but, also, in the evasion of their stipulation
and in their disregard of our decision. It is necessary, in the orderly administration of justice, that our will, as that of the courts below, be respected, when communicated to the parties to an action or proceeding. Both with respect to this point and to the preceding point discussed, it may, again, be observed that the defendants, by their formal stipulation, estopped themselves from objecting either to the non-issuance of the writ of mandamus, or to the right of the court to order its issuance. The appellants argue that the remittitur of this court containing our decision had not been filed in the Supreme Court and an order entered making our decision the determination of the Supreme Court; with the result, as they say, that, by our modification of the order, it had ceased to exist as such and there could have been no disobedience of it. We think this a frivolous objection. It would lead to the irrational conclusion that because a decision in the form of an order or a judgment had been appealed from and brought into this court for review, it became of no force, if modified in some parts, though affirmed in essential parts. The power of the court below to enforce its decisions may be suspended, as the result of an appeal; but its decision loses none of its strength pending the appeal and, if modifications are made of its terms, to the extent that it is sustained, it is the same order, to the validity and force of which has been added the sanction of this court.
The appellants object that this was a proceeding to punish for a criminal contempt; whereas the court, determining that there was no willful disobedience on the part of the defendants, has punished them as for a civil contempt. They argue that the relators made their election as to proceeding and are bound by it; so that, if the defendants were not guilty of that willful disobedience, which is required by the Code (Sec. 8, sub-div. 3) to constitute a criminal contempt, they could not be punished at all therein. They base this point upon the notice which the respondents served with the moving papers, after the decision of the General Term ; which, reversing the denial of the court at Special Term, ordered that the applica
tian for the order requiring the defendants to show cause should be granted. The notice stated that the respondents would ask for a fine of $250 and an imprisonment of 30 days; the particular punishment authorized by the Code (Sec. 9) to be administered for a criminal contempt. It is a sufficient answer to say that the order to show cause, originally applied for and subsequently ordered to be granted by the General Term, and the moving papers presented the matter to the court in such a way as to leave it open for it to decide, upon all the facts, as to the guilt of the defendants, the nature of the offense and the measure of their punishment. The subsequent service of the notice, specifying the punishment which would be demanded, related to a demand in the event of the failure of the defendants to appear and to show cause as required. It did not take away the power of the court to proceed, as required by the General Term order, and to decide upon the offense. The proceeding was in no wise limited to one for the punishment of the offense of a criminal contempt.
We think the case was one which was comprehended within subdivision 8 of section 14 of the Code. That section conferred the power upon courts of record to punish by fine and imprisonment, or either, a violation of duty, or other misconduct, by which a right or remedy of a party to a civil action, or special proceeding, may be defeated, impaired, impeded, or prejudiced; in any case “ where an attachment, or any other jxroceeding to punish for contempt, lias been usually adopted and practiced in a court of record, to enforce a civil remedy * * * and to protect the righ( of a party.” This provision preserved to courts of record the power they had previously possessed to punish, in the interest of a party to the action, as a contempt, an evasion, or a violation of duty, or misconduct, which resulted in defeating or prejudicing the complainant’s rights. It was a power formerly exercised by the English Courts of Chancery, and which was continued by the Revised Statutes of this state (2 R. S. 534, 535); as can be seen from the cases of
King
v.
Tooley
(12 Mod. 312);
Skip
v. Harwood
(3 Atk. 564);
Hearn
v.
Tennant
(14 Ves. 136);
Hull
v.
Thomas
(3 Edw. Ch. 236), and
People
v.
Sturtevant
(9 N. Y. 278). The court below has determined, as a matter of fact, that in what they did the defendants’ acts actually did defeat, impair, impede and prejudice the rights and remedies of the relators, and there can be no doubt that there were undisputed facts, sufficient to warrant the court in finding that the conduct of the defendants amounted to a disobedience, or to a disregard, of the decision made upon the relators’ application for a writ of mandamus. In determining that there had not been a willful disobedience, the court took into consideration, as it properly might, the sworn denials of an intentional disrespect and the averments of having acted in good faith, in proceeding upon a construction of. the meaning of our decision, as to which they had been advised by counsel and which they believed themselves to be true. With this determination upon the facts, we cannot interfere. The court, nevertheless, was required to and it did impose such punishment as, under the circumstances, fitted the facts of the case. These relators had the interest, which all citizens have in public matters, to compel the performance by public officers of the duties of their office, and to ask the enforcement against them of penalties prescribed for their defaults, or disobedience ; but they could not claim to have suffered any actual loss, which the award of a sum sufficient to cover their costs and expenses would not compensate for.
The order appealed from should be affirmed, with costs.
All concur, except Eabl and O’Beien, JJ., dissenting.
Order affirmed.