Opinion
November Term, 1900.
Benjamin Patterson, for the appellants.
Simon Sultan, for the respondent.
This action was instituted for the purpose of restraining the defendants from publishing a newspaper under the name of The People. The plaintiff claimed that at the time of the commencement of the action and for a long time prior thereto, it had been the publisher of such newspaper. The defendants claimed the right to print and circulate that paper under authority derived from the executive committee of the Socialistic Labor party and, in effect, that the paper was the organ of that party. An injunction was issued in the action restraining the defendants from publishing and circulating the paper. The plaintiff, representing that the defendants had violated the injunction, moved the court to punish the violators for contempt and that motion coming on to be heard, was granted and a fine was imposed upon certain of the defendants. Upon appeal to this court that order was affirmed. Subsequently, another motion was made by the plaintiff to strike out the answers of the defendants because of their contempt and that motion was granted, but on an appeal to this court the order entered upon such motion was reversed on the ground that the papers upon which the motion was based did not sufficiently indicate that there had been an adjudication that the defendants' acts constituting the alleged contempt were of such a character as to defeat, impair or prejudice the rights or remedies of the plaintiff. The order of reversal was made without prejudice to the plaintiff's right to renew the motion upon other or additional papers. Thereupon the plaintiff moved upon further or additional papers to strike out the answer of the defendants, which motion was granted, and the present appeal is from the order entered on such motion.
It appears from the record that the original motion to punish for contempt was brought on by an order to show cause "why said defendants and each or either of them should not be punished for their misconduct in disobeying the injunction order of this court * * * and why, for such misconduct and contempt the answer of the defendants in the above-entitled action should not be stricken out." That order was dated November 14, 1899. Upon the return of that order and on the 22d of March, 1900, an order was made adjudging the defendants Kuhn, Murphy, Sanial and Kinneally guilty of contempt and imposing a fine upon each of them, but the order did not direct that their answers be stricken out. The whole subject of the extent of the punishment to be imposed for the violation of the injunction which had been secured was before the court on that motion, and the decision was that a fine only should be imposed. If the plaintiff felt aggrieved because the order did not, in addition to the imposition of a fine, provide that the answer should be stricken out, it should have appealed from that order.
We are then required to consider whether it has been adjudged that after the 22d of March, 1900, acts were committed by these defendants constituting a contempt for which their answer should be stricken out. The affidavits before us made subsequent to March 22, 1900, are those of Mr. Sultan, verified June 12, 1900; of John Nagel, sworn to June 11, 1900, and Mr. Benjamin Patterson, sworn to June 26, 1900, the latter being made and read on the motion on behalf of the defendants. Mr. Sultan's affidavit simply states that no previous application for a similar order had been made. Mr. Patterson's affidavit, of course, does not contain an averment of any act of contempt on the part of his clients, and in the affidavit of Nagel we find only a statement "that said newspaper is publicly sold at the place of business of the defendants and their associates to the public at large, is mailed and circulated throughout the United States by the defendants and their associates, who make a public business of the conducting of said newspaper; * * * that the defendants and their associates do not propose to obey the said injunction, have never proposed to do so, and are now issuing notices in their said paper in which they notify the public at large to aid in the establishment of the newspaper of the defendants and their associates under the name The People, and in the make up such as prohibited by such injunction order as a daily newspaper, and have hired quarters at New Reade street for the purpose of conducting the said business."
The order appealed from which adjudges the defendants guilty of contempt does not state when the contempt was committed, whether before or subsequent to March 22, 1900.
There should have been an adjudication in the order that the defendants were guilty of the contempt since March 22, 1900, in order to justify the additional punishment of the striking out of their answer. Whether the extracts from the affidavit of Nagel would have been sufficient as a basis for an adjudication that the defendants continue to violate the injunction order after March 22, 1900, it is unnecessary to determine. To justify this additional punishment there should have been an adjudication such as has been referred to, and for that reason the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to strike out the answer of the defendants denied, with ten dollars costs.
VAN BRUNT, P.J., RUMSEY, O'BRIEN and McLAUGHLIN, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.