#### Augustin Daly, *v.*Gustav Amberg, Def't1

*(Court of Appeals,*

*Filed June 2, 1891.)*

1. Injunction—Cannot be disregarded, though irregular.

The disobedience of an injunction order cannot be justified by showing that it was improvidently or erroneously granted or irregularly served. Until the order is vacated or the service set aside it must be obeyed, unless it can be shown that it is absolutely void.

2. Same—Service on agents, etc.

An injunction was granted forbidding the proprietor of a theatre, his agents, etc., from producing a certain play. He left the state, and the injunction was served upon the acting manager, ticket agent and leading actor. *Held,,*that the fact that the summons had not been served on the proprietor did not justify them in disobeying the injunction. Such wilful disobedience is a contempt of the authority of the court.

Appeal from a judgment of the supreme court, general term, first department, modifying and affirming an order directing the punishment of defendants for disobeying an injunction order.

*S. W.*Rosendale, for app’lt; *Stephen H.*Olin, for resp’t.

1

 Affirming 36 N. Y. State Rep., 713.

O’Brien, J.

The supreme court made an order in this action adjudging that Schoenberg, Winterfeld and Whither were guilty of contempt, in disobeying an injunction granted in the action by a judge of the court. The general term has affirmed the order, and upon appeal to this court we are asked to reverse it for various reasons, but one of which it is necessary to consider. It has been found by the courts below that the appellant did disobey the order, and that such disobedience defeated, impaired, impeded and prejudiced the rights and remedies of the plaintiff. The proof" upon all the questions of fact involved in the proceeding was sufficient to call for the exercise of the judgment and discretion of the courts below, and there being legal evidence to support the findings, they are conclusive upon us, so far as concerns the facts passed upon. Bu,t the appellants were not parties to the action, and at the time that they committed the acts which constitute the alleged contempt, neither the summons nor the injunction order had been served upon the defendant, in whose employment they were, and it is now argued that under such circumstances, the court below had no power to make the order appealed from. On the 15th day of October, 1890, the plaintiff presented to a justice of the supreme court the summons and complaint in this action, duly verified, also an affidavit and undertaking, as required by the Code to authorize the granting of an injunction. It appeared by the complaint that the plaintiff was a theatrical man*514ager, and had acquired by purchase from the dramatic author the sole right to produce in this country the unpublished manu-“ script play,in the German language, called “Die Wiede Jager.”

It further appeared that the defendant was also a theatrical manager and that he had announced his intention to produce this play at his theatre in Irving Place, in the city of Hew York, on the evening of the 17th and 18th of October. The prayer of the complaint was that a perpetual injunction might issue, restraining the defendant, his agents, actors, servants and employes from producing this play. The justice to whom these papers were presented immediately made an order directing the defendant to show cause on October 20th why an injunction should not issue in accordance with the prayer of the complaint enjoining the defendant, his actors, agents and servants in the meantime and that service of the order on or before October 17th should be sufficient. Before service of the papers in the suit could be made upon the defendant he left the city of Hew York, his residence and place of business, and was absent from the state four daj'S, and the injunction and other papers and process in the case were not served upon him until October 20th. In the meantime, and while the defendant was thus absent, his servants, actors and employes, on October 17th and 18th, produced the play at his theatre. Schoenberg was in apparent control of the theatre and acted as manager in the absence of Amberg the defendant, Winterfield was in *charge*of the box office and appeared to exercise some authority over the actors, and, according to his own statement, he was treasurer of the theatre. Walther acted a leading part in the play. On or prior to October 17, 1890, and in time to prevent the production of the play, the temporary injunction was served upon these three persons by showing each the original, with the signature of the justice, aad leaving with him a copy of the order, with a notice signed by plaintiff’s attorney, stating that the order had been granted. As to Winterfield and Schoenberg, copies of all the papers, upon which the order was granted, were also served. It is well settled that disobedience of an injunction order cannot be justified by showing that it was improvidently or erroneously granted or irregularly served. Until the order is vacated or the service set aside it must be obeyed unless it can be shown that it is absolutely void. *People*v. Sturtevant, 9 N. Y., 263; *Peoples.*Bergen, 53 id., 404; *Clark*v. Bininger, 75 id., 344; *The Erie Railway Co.*v. Ramsey, 45 id., 637.

It is contended, in support of this appeal, that the order to show cause has no vitality or force whatever until, at least, the summons in the action had been served upon the defendant If this position be correct it is obvious that a convenient method has been devised for evading and defeating the remedy which the Code secures to parties by means of an injunction. All that is necessary is for the defendant to absent himself from the state before service of process upon him, and then, when secure under the protection of another jurisdiction, he may direct or permit his agents, servants or employes to do the acts forbidden by the order, without fear of punishment The principal authority that has *515been found to support the view of the appellant is *Leffingwell*v. *Chave,*5 Bosw., 703, decided by Judge Woodruff at special term. That was a motion to vacate an injunction because granted by the judge before the summons in the action was served. Section 220 of the Code of Procedure, under which the case arose, provided that “ the injunction may be granted at the time of commencing the action or at any time afterwards before judgment.” It was held that an injunction granted before the summons was served was regular and could not be set aside on motion. Whether, under any circumstances, the injunction could become operative if served before the summons, was a question not necessarily involved in the case, though the learned judge expressed the opinion that it could not. The present Code of Civil Procedure, § 608, provides that the injunction order “may be granted to accompany the summons, or at any time after the commencement of the action and before final judgment.” It may be admitted that an injunction served prior to the service of the summons in an action is irregular, but it by no means follows that it is void. It cannot be said that an order is void when there was jurisdiction in the court or officer to make it The presentation of the summons, complaint, affidavit and undertaking to the judge conferred upon him, under the statute, jurisdiction to make the order, and it was valid from the moment when he signed and delivered it. In some cases the court acquires jurisdiction of an action before the summons is served. By § 416 of the Code of Civil Procedure jurisdiction of the action is obtained, for the purpose of controlling all subsequent proceedings, from the time of granting a provisional remedy.

It follows that in this case the court had the power to grant the injunction, and had jurisdiction of the action in which it was granted, from that time, for the purpose of enforcing obedience to its order. In this condition of things to say that these appellants could disregard the injunction when actually served upon them, and continue to do the things enjoined and forbidden, because the plaintiff had not yet succeeded in making personal service of the summons upon the defendant, would be to defeat the remedy intended to be secured by the order, and to trifle with the administration of justice. The appellants were the agents and servants of the defendant. The restraining words of the order included them as well as their employer. By the service of it upon them they were informed that a suit had been commenced to perpetually restrain the production of the play, and that the court had enjoined the production thereof in the meantime and during the pendency of the action. The wilful disobedience of the order of the court served under such circumstances, is a contempt of its authority, and this result is not relieved by the circumstance that the summons in the action had not yet been served upon the defendant when the order was disobeyed. This court has upheld proceedings in the supreme court punishing parties for contempt in violating an injunction who had knowledge of it, though not served, and also the agents and attorneys of parties having like knowledge of the granting of the order, though it was imperfectly 07- irregularly served. *Abell v. The N. Y., L. & W. R. R. Co.,*18 *516Wk. Dig., 554; affirmed, 100 N. Y., 634; *Koehler*v. *The Farmers & Drovers’*Bank, 6 N. Y. Supp., 470 ; 25 N. Y. State Rep., 222 affirmed, 117 N. Y., 661; 27 N. Y. State Rep., 982. The same result must follow in a case where the agents and servants have been actually served with the order, though the plaintiff had not been able to serve the summons or any other paper upon the defendant himself.

The order appealed from should be affirmed, with costs.

All concur.