Opinion
April Term, 1902.
L. Laflin Kellogg [ Alfred C. Petté with him on the brief], for the appellant.
Charles W. Church, Jr., for the respondent Dady.
John C. McGuire, for the respondent Hamilton Trust Company.
The stay of proceedings which the respondents are alleged to have violated was contained in an order granted by Mr. Justice MADDOX, requiring the plaintiff to show cause why all proceedings on his part and on the part of the Hamilton Trust Company should not be stayed pending an appeal from an order of the Appellate Division affirming the judgment in this action. The stay was in these words: "and until the hearing and determination of this motion let all proceedings on the part of the plaintiff and the defendant, Hamilton Trust Company, except the entering of an order and judgment upon the decision of the Appellate Division be stayed, sufficient cause having been shown." The application for the stay of proceedings on appeal was argued before Mr. Justice GAYNOR on June 7, 1901, and on the afternoon of that day the learned justice announced a decision denying the motion. No order, however, was entered upon that decision until ten days later.
Meantime the plaintiff, who, under the judgment was entitled to receive 687 shares of stock of the Hygienic Ice Company from the Hamilton Trust Company, demanded said shares from the Hamilton Trust Company on the 8th day of June, 1901, and his demand was complied with by the delivery of the stock.
It is no doubt generally true, as argued in behalf of the appellant, that before a decision can take effect a written order thereon must be signed and entered, but the cases to that effect cited on the argument of this appeal are not cases of contempt, nor, as it seems to me, do they furnish the rule which should be applied in such a proceeding as this. Here the stay, by its express terms, was to last only "until the hearing and determination" of the motion. The respondents proceeded on the assumption that the announcement by Mr. Justice GAYNOR of his decision was a determination of the motion in such a sense as to leave them at liberty to take any action which they might lawfully have taken before the stay of proceedings was granted, and I am not prepared to say, in the absence of any evidence indicating bad faith, that they should be held liable for contempt of court in so doing. If, after the argument of a motion to vacate a temporary injunction, the justice hearing the cause should announce from the bench a decision declaring the injunction vacated, a party, hearing the announcement and proceeding on the faith of it to do some act which the temporary restraining order forbade, would hardly be deemed punishable for contempt because he had not waited until a formal order upon the decision had actually been written out and entered.
Under the circumstances of this case, I think the motion to punish the respondents was properly denied.
All concurred, except HIRSCHBERG, J., absent.
Order affirmed, with ten dollars costs and disbursements.