Socialistic Co-Operative Publishing Ass'n v. Kuhn (54 A.D. 241, 1900)

Patterson, J.:

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 tine 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 th,e 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 2á, 19.00,. 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 wé find only a statement