Dinsmoor v. Commercial Travelers' Ass'n

Hardin, P. J. 1. Appellant, in his affidavit used upon the return of the order to show cause, states positively “that he is not an attorney or counsel for the plaintiff in this case, and never was employed by the plaintiff as such.” We do not find the indorsement of the appellant’s name upon the summons or complaint in this action, nor do we find his name recited in the order of the 5th of April, 1890. 2. In the appellant’s affidavit used upon the return of the order to show cause, we also find the following positive statement made by him, to-wit: “And that the original order specified in the moving papers herein as the foundation for the order to show cause was never served on deponent, or in any way came to his knowledge before the order to show cause was served upon deponent.” Accepting the statement of the appellant in the fullest and broadest sense in which it is capable of being understood, it may be said that the restraining provisions of the order of April 5th did not rest upon the appellant at the time he acted as solicitor in the federal court. 3. The appeal-book does not contain an order vacating the order of discontinuance made on the 4lh day of April, 1890. In Wilder v. Boynton, 63 Barb. 549, it was said: “The court has a right to control its own orders, and may exercise its discretion in respect to the terms upon which parties shall be permitted to discontinue actions.” Thatcase was affirmed in this department, January 7, 1873. In Re Butler, 101 N. Y. 309, 4 N. E. Rep. 518, it was said, viz.: “Ordinarily, a suitor has a right to discontinue any action or proceeding commenced by him, and his reasons for so doing are of no concern to the court. A party should no more be compelled to continue a litigation than to [678] commence one, except where substantial rights of other parties have accrued, and injustice will be done to them by permitting the discontinuance. In such a case, through the control which the court exercises over the entry of its orders, there is discretion to refuse; but where there are no such facts, and nothing appears to sho.w a violation of the right or interest of the adverse party, the plaintiff may discontinue, and a refusal of leave becomes merely arbitrary, and without any basis upon which discretion can exist.” 4. In the" order appealed from there is found the following phrase: “By the commencement of this action in the said circuit court the interest and rights of the defendant in this action and of the sheriff in the action prosecuted by him were endangered, and they each damaged thereby.” Sections 14 and 2266 of the Code of Civil Procedure confer power to punish for contempt in cases where “a right or remedy of a party to a civil action or special proceeding, pending in the court, may be defeated, impaired, impeded, or prejudiced thereby;” and section 2281 of the Code provides as follows, viz.: “If it is determined that ttie accused has committed the offense charged, and that it was calculated to, or actually did, defeat, impair, impede, or prejudice the rights or remedies of a party to an action or special proceeding, broughtin the court, or before the judge or referee, the court, judge, or referee must make a final order accordingly, and directing that he be punished by fine or imprisonment, or both, as the nature of the case requires. ” In Swenarton v. Shupe, 40 Hun, 42, it was held'that an order was void because “no adjudication was made that the misconduct complained of was calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of the petitioner, or that the latter had sustained any loss or damage thereby;” and in Sandford v. Sandford, Id. 540, it was held that, “ to punish a party for contempt in a civil proceeding, his conduct must be such as to defeat, impair, impede, or prejudice a right or remedy of the party affected by it, and that fact must be ascertained and adjudged by the court directing the punishment which is to be imposed.” In Fischer v. Langbein, 103 N. Y. 85, 8 N. E. Rep. 251, it was said that the commitment and the order, and the affidavit upon which it was founded, “stated in detail the proceedings which it was claimed the disobedience affected;” and it was there held that such a statement was a full com-" pliance with the requirements of the rule in respect to the contents of a commitment. In the case in hand there was no express adjudication, within the exact language of the provisions of the statute to which we have referred. From the foregoing features of the ease before us, we deduce the conclusion that the order should be reversed. Order reversed, with $10 costs and disbursements, payable by the respondent. All concur.