People ex rel. Platt v. Rice , 80 Hun 437 ( 1894 )

HERRICK, J.

This is an appeal from an order of the special term adjudging the appellants guilty of contempt of court in disobeying an order of the supreme court theretofore issued, and fining them the amount of the relators’ costs and expenses. This case has heretofore been before this court (74 Hun, 179, 26 N. Y. Supp. 345), upon an appeal from an order refusing to grant an order to show cause why the defendants should not be punished for contempt. Most of the material facts and the law relating thereto were discussed by this court in rendering its decision upon such appeal, and it is unnecessary to repeat them here. The defendants made answer to the special term to the charges brought against them, and the special term has held that the facts show disobedience by the defendants to the order of the court, and adjudged them guilty of contempt; and I see nothing in the facts set forth in the case upon appeal that would warrant us in arriving at a different conclusion upon the facts than has the special term, unless it should be to hold that the defendants willfully and knowingly violated the order in question.

The appellants take exception to the findings of the special term, in this: that it holds the defendants guilty of civil contempt only, whereas the relators move against the defendants as for a criminal contempt. I do not think this contention of the appellants is well founded. The moving papers of the relators purport to set forth the alleged facts in the case, and ask the court to punish them for an •alleged contempt, without defining its character. It was for the ■court to determine, upon the facts, the nature of the offense committed; and, even if the relators had demanded the punishment of the defendants as for criminal contempt, that would not necessarily confine the court to the form of relief or 'punishment demanded; neither does it afford ground for relief to the appellants if the court found that they were guilty of a lesser offense than the relators claim. The question really is, have the appellants been guilty of any form of contempt, civil or criminal? I do not think that the answer of the defendants places them in any different situation from that in which they appeared when this case was last before •us, except, possibly, the charge that they have willfully disobeyed the order of the court. As before stated, the general questions, both of law and of fact, arising herein, were discussed upon the former appeal, and it is unnecessary to repeat such discussion here. But there are some questions raised that, perhaps, were not disposed of at that time, which it is well to consider here.

The appellants contend that no mandamus was actually issued in this case, and that, therefore, they cannot be punished for not complying with its terms. I do not think that the appellants are in position to raise any such questions in this case. We have been cited to authorities bearing upon the appellants’ contention in that behalf, but I do not think they are pertinent to the case now before us. Former decisions of this and other courts are valuable, and should be respected as guides to our action, but they are not precedents to be followed, unless either the facts or principles involved in them are similar to those of the case in which they are cited. None of the cases cited have any similarity to the case now here. In this case the order of the court directing the issuance of a mandamus was granted, and there and then a stipulation was entered into by the counsel for the parties that an appeal be immediately taken; that the canvass of votes for senator in the district in question be suspended until the decision of the court of appeals upon such appeal, provided such decision should be made prior to December 30, 1891; and that the certificate of the result of the election should be made and issued by the appellants in accordance with the decision of the court of appeals. It appears that the decision of the court of appeals was rendered about 2 o’clock in the afternoon of the 29th of December (29 N. E. 355), and that the canvass of votes was made by the appellants during the evening of the said 29th day of December. It will thus be seen that the defendants, by their own act, in entering into the stipulation, rendered unnecessary, and indeed prevented, the issuance of the writ of mandamus originally; and, by their precipitation in canvassing the votes on the evening of the same day of the decision of the court of appeals, they performed the prohibited act before a remittitur from the court of appeals could be issued, and an order of the supreme court making the judgment of the court of appeals the judgment of the supreme court, and the issuing of a.formal writ of mandamus thereupon would ordinarily, in the orderly and decent practice of the law, .be accomplished. Under such circumstances, it does not seem to me that the defendants can be permitted to shield themselves from punishment by the fact that a formal written document, which is issued to enforce the order and decision of the court, has not been issued, they knowing at the time what the decision and order of the court is. It is the disobedience of the order of the court which constitutes the contempt, not the failure to recognize the instrument by which it is enforced. In this case the order was that the returns in question should not be canvassed.

Again, the appellants assert that they should not be punished because no order was in fact served upon them, as before stated in relation to the nonissuance of the formal writ of mandamus. It was rendered unnecessary by the stipulation entered into by them. It is admitted that the appellants had knowledge of the order, and of its terms and conditions. “In administering the law in respect to the violation of injunctions, the court of chancery never lost sight of the principle that it was the disobedience to the order of the court which constituted the contempt; and therefore, although it required of the party availing himself of its order a substantial compliance with the rules of practice upon the subject, it would not usually allow the effect of its orders to be wholly lost when the party sought to be bound by the order had actual knowledge or notice of its existence, although there might have occurred some slip in the formal method of bringing it home to him.” People v. Sturtevant, 9 N. Y. 263-278. “This court has upheld proceedings of the supreme court punishing parties for contempt and violation of an injunction who-had knowledge.of it, though not served.” Daly v. Amburg, 126 N. Y. 490-496, 27 N. E. 1038, and cases cited. See, also, Rochester, H. & L. R. Co. v. New York, L. E. & W. R. Co., 48 Hun, 190; Gage v. Denbow, 49 Hun, 42,1 N. Y. Supp. 826. In Hull v. Thomas, 3 Edw. Ch. 236, the defendant was held guilty of contempt where the court had issued an order for an injunction, although the order was not entered or the process served. It is true that these cases I have referred to are all cases of violations of injunctions, but I can see no difference in principle between the violation of an injunction, or of an order for an injunction, and the violation of an order for a writ of mandamus. The principle is the same. It is the order of the court that has been disobeyed, and it has been brought equally into contempt, whether that order be for an injunction, mandamus, writ of prohibition, or any other writ or order which the court has power to grant or issue.

The appellants also contend that they cannot be punished because, at the time of the canvass of the votes, the proceeding in which the order had been issued was not in the supreme court, but was in the court of appeals, the remittitur not having been then filed, maldng the judgment of the court of appeals the judgment of the supreme court, and that, therefore, their action was not a violation of the order of the supreme court. Except for the prominence of the parties and their counsel who urge this, I should hardly be inclined to spend time upon it. The proposition that, by appealing to the court of appeals, the person appealing may in the interval that elapses between the decision of that court and the transmission of its decision to the supreme court, and the entering of an order making such judgment the judgment of the latter court, do the act which was prohibited by the supreme court, and such prohibition affirmed by the court of appeals, answers itself. To countenance such a proceeding would be a travesty of justice. The order of the supreme court still exists, although it be taken to the court of appeals. The power of the court to enforce it is simply suspended pending the appeal. The party against whom it issued is not relieved from its mandate, although not enforceable against him until after being passed upon by the court of appeals.

Again, the appellants urge that there is nothing in the record to show that, at the time the proceedings were taken to punish them for contempt, the principal proceedings were not still in the court of appeals, and that, therefore, there were no proceedings pending in the supreme court. Upon the argument there was produced before us a certified copy order of a special term of the supreme court, held by the presiding justice of this ceurt, on the 30th day of December, 1891, making the judgment of the court of appeals in this matter the judgment of the supreme court. Such certified copy order, we think, this court had power to receive, for the purpose, if necessary, of sustaining the order appealed from. Day v. Town of New Lots, 107 N. Y. 148, 13 N. E. 915, and cases cited. And, in addition to that, it seems to me that the court at special term, as also this court, can take judicial knowledge of an order made by the supreme court in the same proceeding. The order appealed from should be affirmed, with §10 costs and printing and other disbursements of this appeal.