Sullivan vs. Judah & Weed, 4 Paige Ch. 444

The Chancellor. 'v There is no doubt in this case, that there has been a technical violation of the injunction, on the part of both defendants. The injunction was erroneous in not describing with sufficient certainty, on its face, the particular buildings with the erection of which the defendants were restrained from proceeding. The injunction should, in itself, contain sufficient to apprise the party upon whom it is served what he is restrained from doing; without the necessity of his resorting to the complainant’s bill on file, to ascertain what the injunction means.

And if the defendants, in the present case, had not in fact known to what particular buildings the injunction related, they would have been excusable for proceeding, notwithstanding the injunction.

It is evident, however, that they did understand, either from an examination of the records of the court, or otherwise, that the buildings described in the complainant’s bill, were those which the defendant Judah was erecting in the city of New-York. j The injunction restrained the defendants, generally, from proceeding with the erection of the buildings, as well as from intermeddling with the work stipulated to be done by the complainant under his contract. The continuation of the carpenter’s work by Weed, was therefore as much a breach of the injunction, as proceeding with the mason work would have been.

Audit is no answer to this application to say there was no allegation in the bill which could entitle the complainant to stay the defendants from going on with the carpenter’s work. If that was a sufficient excuse, it would be equally applicable to the mason work; as this court has already decided that there was nothing in the complainant’s bill which entitled him to an injunction restraining the defendants from proceeding with any of the work on these buildings.

When an injunction has been granted by the proper officer, acting within his powers and jurisdiction under the rules of the court, the defendant, upon whom the same is served, must not be permitted to speculate upon what may be the decision of the court, upon the equity of the bill upon which the injunction has been allowed. In this case the master had the power to allow the injunction, as it did not appear from the bill that the injunction must necessarily produce great and irreparable injury to the defendants.

It was one of those cases, however, in which, if there had been equity in the bill to support an injunction, the master should, in the exercise of a sound discretion, have required security from the complainant, under the last clause of the 31st rule, before he allowed the injunction.

Such security should be required, or the complainant’s own bond, at least, should be taken by the officer allowing the injunction, in all cases where the injunction will probably produce a serious loss or damage to the defendant, by the mere suspension of the proceedings enjoined. (See 2 Paiges R. 116.) Although a party, however, is not to be permitted to violate an injunction with impunity, even if it has been erroneously issued, and without any sufficient cause to sustain it, yet the court may take that fact into consideration in determining the extent of punishment which is to be awarded against the defendant for a breach of such injunction.

But the least that the court can do in such a case is to require the party, who has been guilty of a breach of the injunction, to pay to the adverse party the costs of the proceedings against him for the contempt. In this case it is evident the complainant has sustained no injury by the proceedings of the defendants, although they have proceeded in direct opposition to the injunction. . And the excuse offered by them is sufficient to prevent the impositionof any considerable fine, as a punishment for contemning the process of the court.

Upon payment of the costs of this application, therefore, all further proceedings against them for the contempt will be stayed. But if they do not elect to pay such costs to the complainant, or his solicitor, and actually pay the same within ten days after service of a copy of the taxed bill on their solicitor, an attachment must issue against them, to answer for the alleged contempt; the attachment to be bailable in the sum of $200, and returnable on some day in the next term of this court at New-York,