Citation Numbers: 13 Abb. Pr. 264
Judges: Allen
Filed Date: 11/15/1861
Status: Precedential
Modified Date: 1/12/2023
—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.
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
An injunction may be entered accordingly..