#### Aldinger *v.*Pugh. People *ex rel.*Aldinger *v.*Same.

*(Supreme Court, General Term, Fourth Department.*

July 1, 1890.)

1. Powers of Special Surrogate—Injunction.

Laws N. Y. 1849, c. 306, § 2, as amended by Laws 1851, c. 108, declare that the special county judge and special surrogate provided for in the preceding section “shall possess all the powers and perform all the duties which are possessed and can be performed by a county judge out of court. ” B.y the old Code Proc. § 218, the county judge then had express authority to grantan'injunction, and also,by section 403, in an action in the supreme court, to exercise within his county the powers of a judge of the supreme court in chambers. *Held,*that the special surrogate of Oneida county (whose office was created by said act) is authorized to grant a temporary injunction in an action in the supreme court.

2. Same—Repeal of Statute.

No implication arises from the adoption of the Code that said amended act of 1849 was intended to be repealed; nor is there any inconsistency between that statute and the provisions of the Code upon the subject of special county judges and special surrogates, which would work a repeal thereof; especially as that was a special act, applying only to the counties enumerated.

8. Reference—Contempt.

Under Code Civil Proc. N. Y. § 2283, which requires that “upon the return of an order to show cause, the questions which arise must be determined as upon any other motion; ” and section 1015, which empowers a court of its own motion to direct a reference “upon a question of fact arising in any stage of the action, upon a motion or otherwise, except upon the pleadings, ”—the court properly directed a reference to determine a question of fact arising in a proceeding to punish for contempt.

4. Appeal—Temporary Injunction.

An appeal cannot be taken from an order granting a temporary injunction,when no motion to vacate has been made as prescribed by Code Civil Proc. § 626.

8. Contempt—Finding—Evidence.

The mere fact that defendants removed a quantity of hay from a leased farm in violation of a valid injunction issued at plaintiff’s instance, is sufficient to support a finding that plaintiff’s rights were “defeated, impaired, impeded, or prejudiced” thereby, as required by Code Civil Proc. N. Y. § 2266, to justify summary punishment; and the fact that they afterwards brought upon the farm the equivalent in manure of the hay so taken, thus substantially complying with, the provisions of the lease, did not deprive the court of power to punish them for contempt, but was only a fact to be considered in mitigation.

6. Same—Agent.

An agent who, with knowledge that notice of an injunction has been served upon his principal, violates the injunction while acting as agent, may be punished for contempt, although he himself was not served.

Appeal from special term, Oneida county.

Action by Rozellen Aldinger against Emery S. Pngh. Defendant and Stephen J. Pugh appeal from an order adjudging them guilty of contempt, and *685inflicting punishment therefor. On the 7th day of December, 1888, an injunction was granted by the special surrogate of Oneida county in an action in the supreme court, in which Rozellen Aldinger was plaintiff and Emery S. Pugh was defendant, by which the defendant, his agents, assistants, and assignees, were enjoined from selling, disposing of, or drawing away any of the hay on a certain farm owned by the plaintiff, and occupied by the defendant, in that action, during the pendency thereof, or until the further order of, the court. This injunction was served upon Emery S. Pugh on the day it was granted. On the 22d and 24th days of the same month, and while the injunction was in full force, Stephen J. Pugh, the father of the defendant, removed from said farm about 11 tons of the hay thereon, which was referred to in said injunction. The injunction was not served upon Stephen J. Pugh until December 24th, but he knew of the service of it on the defendant, and the contents thereof. The defendant, Emery S. Pugh, was aware of the removal of such hay, but did nothing to prevent it. On December 81,1888, an order requiring the said Emery S. Pugh and Stephen J. Pugh to show cause at a special term of the supreme court, to be held at the court-house in the city of Utica on the 8th day of January, 1889, why they should not be punished for contempt in knowingly violating such injunction, was duly granted by Hon. Milton H. Merwin, one of the justices of this court, and served on the appellants. On the 8th day of January, 1889, the parties appeared, and the court, upon reading and filing the order to show cause, the affidavits presented in support of such application, and affidavits produced in opposition thereto, and after hearing counsel for the plaintiff and counsel for the defendant and Stephen J. Pugh, made an order appointing a referee to take the evidence of the parties to that proceeding, and their witnesses, as to whether the defendant Emery S. Pugh and Stephen J. Pugh had violated such injunction; and, if so, whether such violation was willful, and whether the said Stephen J. Pugh aided or abetted the defendant Emery S. Pugh in violating the same; and, if so, whether such violation defeated, impeded, or prejudiced the plaintiff's rights, and to what extent; and directed him to report the facts, and return the testimony, with his opinion thereon, to the court. The referee thus appointed duly proceeded to execute such reference, and take the evidence of the parties and their witnesses, and reported the same to the court, with the facts found, and with his opinion thereon. The referee, among other things, found “that on December 22 and 24, 1888, the said Stephen J. Pugh drew away from said leased premises eleven tons of hay of the value of $132, and that defendant was aware of such removal, and did nothing to prevent it; that by such removal, on December 22 and 24, 1888, defendant and S. J. Pugh, and each of them, knowingly and willfully violated said injunction order,—the defendant in permitting the said Stephen J. Pugh to remove said hay, and the said S. J. Pugh in aiding and abetting and assisting the defendant to remove, draw away, and dispose of the hay referred to in and restrained by said injunction order; and, further, in refusing to return the two tons of said hay removed by him on December 24, 1888. * * * At the time of the service of the injunction order, and also on December 22 and 24,1888, the plaintiff was damaged by the failure on defendant’s part to draw back manure equivalent in amount to the hay and straw then drawn away. This damage has since been remedied by defendant’s drawing manure on the place from December 15, 1888, and through February and March, 1889, and inasmuch as the defendant, before the expiration of such lease, fully complied with all its provisions, except keeping the ten cows, and drew back upon said premises an amount of manure equivalent to the hay and straw drawn away by him, the object of this action is substantially defeated, and the plaintiff cannot be said to have suffered any damages from the breach of any covenant in the lease, or by removal of the hay.”

Upon all the proceedings had in this matter, the testimony taken before the *686referee, his report, opinion, and the affidavit of Henry F. Coupe as to the plaintiff’s costs and expenses incurred in such proceeding, the matter came on for hearing at a special term of this court; held at the court-house in the city of Utica, June 15, 1889, when, after hearing counsel for the plaintiff and counsel for the defendant, Emery S. Pugh and Stephen J. Pugh, it was by the court adjudged and determined “that the defendants, Emery S. Pugh and Stephen J. Pugh, are guilty of contempt in having knowingly and willfully disobeyed the said injunction order granted in said action,—the said Emery S. Pugh in causing and permitting eleven of the tons of the hay mentioned in and restrained by said injunction, of the value of $132, to be removed, drawn away, and disposed of while said injunction order was in force, to-wit, on the 22d and 24th days of December,' 1888; the said Stephen J. Pugh in having, with full knowledge of said injunction-order, of its contents, and of the service of it on the defendant, while acting as the agent, servant, and assistant of the said defendant, aided and abetted and assisted the said defendant, Emery S. Pugh, in said removing, drawing away, and disposal of said eleven tons of hay on the said 22d and 24th days of December, 1888; and that said violation of said injunction order was calculated to and actually did defeat, impede, impair, and prejudice the rights and remedies of the plaintiff in said action. It is further considered and adjudged and ordered that the said Emery S. Pugh and Stephen J. Pugh pay a ¡fine of $100 referee’s fees, $17 witness fees, $50 counsel fees, and $10 costs of this motion, in all the sum of $177, to be paid to the"plaintiff herein, said Rozellen Aldinger, to satisfy her costs and expenses in the premises, and that they stand committed to the common jail of Oneida county until said fine be paid.” From this order and determination of the special term the defendants, Emery S. Pugh and Stephen J. Pugh, appealed. It is also" stated in the notice of appeal that the “appellants intend to bring up for review the injunction order granted herein, and the order of reference to Charles G-. Irish.”

Argued before Hardin, P. J., and Martin, J.

• *Edward Lewis,*for appellants. *Henry F. & James Coupe,*for respondents..

Martin, J.

As no motion was made to set aside or vacate the injunction order granted herein, the appellants are not in a position to review that order on this appeal. Their remedy was by an application under article 3, tit. 2, c. 7, of the Code of Civil Procedure, and not by appeal. Id. § 772. An appeal from an order granting a provisional remedy can only be taken when made upon notice, Id. § 1347. Ho appeal lies from an order granted *ex-parte. People*v. *Common Council,*30 Hun, 636; *In re Johnson,*27 Hun, 538. We And no ground for disturbing the order of reference. The Code-of Civil Procedure provides that, upon the return of an order to show cause in proceedings for contempt, the questions which arise must be determined as upon any other motion. Section 2283. The court may of its own motion direct a reference to determine and report upon a question of fact arising upon-a motion. Code Civil Proc. § 1015. See *People*v. *Alexander,*3 Hun, 211. The special term was fully justified by the evidence taken in this proceeding in finding that the appellants knowingly and willfully disobeyed the injunction, and in adjudging them guilty of contempt, if- the officer granting such injunction was authorized ■ by law to grant it. The appellants contend that the special surrogate of Oneida county had no power or authority to grant an injunction in such an action. If such authority existed, it was under and by virtue of the provisions of chapter 306, Laws 1849, as amended by chapter 108, Laws 1851, which provides: “Section 1. There shall be elected in the counties of Jefferson, Oneida, St. Lawrence, Oswego, Orange, Chautauqua, Cayuga, and Tioga, at the next general election, and as often thereafter, at any succeeding general election, as may be necessary, in the same manner as other county officers are elected, a local officer or two local officers to dis*687charge the duties of county judge and surrogate in their respective counties; in cases of vacancy or inability of such officers or either of them, in pursuance of section fifteen of article sixth of the constitution, when the duties of county judge and surrogate shall be discharged by the same person, there shall be elected, as aforesaid, one local officer; and in such of the said counties where, the office of county judge and surrogate shall be separate there shall be elected, as aforesaid, two local officers; and the term of office of the persons so elected shall commence on the first day of January next after their election. They shall hold theij offices for three years, and until others are chosen in their places, and duly qualified, and shall be subject to removal in the same manner and for the same causes as county judges and surrogates are subject to be removed.” Section 2, as amended by Laws 1851, c. 108: “Such local officers so elected to discharge the duties of county judge (or of county judge and surrogate, in those counties where there is no separate officer to discharge the duties of surrogate) shall be designated as special county judge, and such local officers so elected to discharge the duties of surrogate in those counties where there shall be a separate officer to discharge the duties of surrogate shall be designated as special surrogate. Such local officers so elected to discharge the duties of county judge, or of county judge and surrogate, or to discharge the duties of surrogate in those counties where there shall be a separate officer to discharge the duties of surrogate, shall possess all the powers and perform the duties which are possessed and can be performed by a county judge out of court; and any proceeding commenced before any such special county judge or special surrogate may be finished by him, or he may by order direct that the same shall be finished by the county judge, or by the surrogate, as the case may be.”

The provisions of this statute seem to confer upon the special surrogate of Oneida county all the powers and duties which are possessed and can be performed by a county judge out of court. When the statute under consideration was passed, and also when it was amended, a county judge was given express authority to grant an injunction. Code Proc. § 218. He was also authorized in an action in the supreme court to exercise within his county the powers of a judge of the supreme court at chambers. Id. § 403; *People*v. *Parr,*24 N. E. Rep. 481. The effect of the statute of 1849 as amended was considered in the case of *Seymour*v. *Mercer,*13 How. Pr. 564, and it was there said: “It is entirely clear that the legislature intended to confer upon these local officers, both special county judges and special surrogates, all the powers of the county judges which they could perform out of court or at chambers, as well as all other powers, both of county judge and of surrogate, in case of inability or vacancy in the offices, respectively.” In that case it was held that the special surrogate of Cayuga county had authority to grant an order of arrest without regard to the questions whether the office of county judge was vacant or his inability to act. In *Kinney*v. *Roberts,*26 Hun, 166, the special county judge of Oneida county made an order in an action in the supreme court requiring a party to appear and be examined under the provisions of the Code of Civil Procedure upon the application of his adversary; and in that case Smith, P. J., in delivering the opinion of the court, said: “A question was made on the argument as to the power of the special county judge of Oneida to make the order for the examination. Wé think there is no reason to doubt his power. Such officer possesses all the powers and may perform all the duties of a county judge out of court. Laws 1849, c. 306, as amended by chapter 108, Laws 1851. When the act of 1849 was passed, county judges possessed the power in question, (Laws 1848, c. 379, Old Code, 8 345,) and the power is continued to them by the present Code, (section 872.) The fact that the latter section does not mention special county judges does not divest them of the power conferred by the acts of 1849 and 1851. Those acts still operate to vest those officers with the powers possessed by *688county judges out of court.” This case was appealed to the court of appeals, and the appeal was dismissed by that court. 89 N. Y. 601. In *Babcock*v. *Clark,*23 Hun, 391, it was held that the special county judge of Chautauqua county had power to grant an injunction. It seems that the statutes of 1849 and 1851 confer upon the special surrogate of Oneida county powers which are sufficient to authorize him to grant a temporary injunction in an action in the supreme court.

But the appellants contend that the statutes of 1849 and 1851 have been repealed. It is not claimed that they have been expressly repealed, but the claim is that they have been repealed by implication by the adoption of the Code of Civil Procedure; Repeals by implication are not favored in law. It is only where a later statute is repugnant to or inconsistent with an existing one, so that the two cannot be harmonized, or where the subsequent act shows that it was clearly intended to supersede the former statute, that a repeal by implication arises. *In re Curser,*89 N. Y. 401; *People*v. *Crissey,*91 N. Y. 616; *Mark*v. *State,*97 N. Y. 578. We find no such inconsistency between the statute of 1849 as amended and the provisions of the Code of Civil Procedure as to work a repeal of the former statute, nor do the provisions of the Code show that they were intended to supersede the statute of 1849. The latter is in harmony with the provisions of the Code. Both can stand together, and both should be maintained and enforced. Again, the statute of 1849 as amended was a special statute relating only to 8 of the 60 counties of the state. “It is a rule of construction that a special statute providing for a particular case, or applicable to a particular locality, is not repealed by a statute general in its terms and application, unless the intention of the legislature to repeal or alter the special law is manifest, although the terms of the general act would be taken strictly, and, but for the special law, include the case or cases provided for by it.” *Van Denburgh*v. *Village of Greenbush,*66 N. Y. 1; *In re Commissioners,*50 N. Y. 493; *Association*v. *City of Buffalo,*118 N. Y. 61, 22 N. E. Rep. 962. “Laws, special and local in their application, are not deemed repealed by general legislation, except upon the clearest manifestation of an intent by the legislature to effect such repeal, and ordinarily an express repeal by some intelligible reference to the special act is necessary to accomplish that end. ” *People*v. *Quigg,*59 N. Y. 83; *In re Delaware & H. C. Co.,*69 N. Y. 209; *Village of Deposit*v. *Devereux,*8 Hun, 317. Such is the rule even though the general law contains a general repealing clause as to inconsistent legislation. *Whipple*v. *Christian,*80 N. Y. 523. See, also, *People*v. *Sheridan,*1 N. Y. Supp. 61. Moreover, it was expressly held in the case of *Kinney*v. *Roberts,*26 Hun, 166, that the statutes of 1849 and 1851 were not repealed or annulled by the Code of Civil Procedure.

We have examined the cases cited by the appellants, but have found nothing in them which would sustain their contention that the statutes in question were repealed by the Code of Civil Procedure. Those cases are clearly distinguishable from the case at bar; hence we conclude that the statutes conferring upon the special surrogate of Oneida county the powers, and imposing upon him the duties, which are possessed and can be performed by a county judge out of court, are not repealed, but in full force, and therefore that he had authority to grant a temporary injunction in this action. The appellants also contend that the order adjudging them guilty of contempt should be reversed, because the findings of the court and referee that the acts of the appellants in violating the injunction were calculated to and actually did defeat, impede, impair, and prejudice the rights and remedies of the plaintiff in said action, were not sustained by the evidence taken in this proceeding. The evidence and proceedings contained in the appeal book disclose that the plaintiff procured an injunction restraining the defendant, his servants, agents, assistants, and assignees, from selling, disposing of, or drawing away any of the hay on the farm mentioned in the complaint; and that the appellants, with*689out any application to vacate or set aside the injunction, knowingly and willfully disobeyed the order, and sold and removed the hay. That the acts of the appellants in thus removing this property, in defiance of the order of the court, were calculated to and actually did defeat, impede, impair, and prejudice the rights and remedies of the plaintiff is quite manifest. The plaintiff had -a right to the order granted. The officer granting it had determined that she had that right. The order was valid until set aside. “If an order within the jurisdiction of the court is imprudently or erroneously granted, the remedy of the party aggrieved is by application to vacate it, or by appeal. It cannot be reviewed upon an application to punish for disobedience of it. So as long as it remains in force it is the duty of all parties to obey it.” *People*v. *Bergen,*53 N. Y. 404; *Railway Co.*v. *Ramsey,*45 N. Y. 637; *Barr*v. *Titus,*75 N. Y. 344; *People*v. *Dwyer,*90 N. Y. 402. While the injunction remained in force the plaintiff had a right under it to prevent the appellants from interfering with the hay in question. She had a right to the remedy awarded her. When these proceedings were commenced the plaintiff had a right to the injunction granted, and to have it enforced for the protection of her interests. That right was invaded by the appellants when they sold and removed the property which they were enjoined from removing or selling. By that act the order of the court was rendered ineffectual, and the plaintiff’s right and remedy under and by virtue of it were destroyed. This interior, ence by the appellants was well calculated to, and did, for a time at least, impair, impede, prejudice, and defeat both the right and remedy of the plaintiff. That th’e appellants subsequently became alarmed at the possible consequence of their acts and discharged their liability to the plaintiff, so that she lost nothing under her contract with the defendant Emery S. Pugh, in no way deprived her of the rights which she possessed when the proceedings were instituted, nor did it discharge the appellants’ liability for a wrongful interference with the property removed. As was tersely said by the judge at special term, “what was afterwards done by the defendant does not cure, but may mitigate.” See *King*v. *Barnes,*113 N. Y. 476, 21 N. E. Rep. 182.

The appellant Stephen J. Pugh claims that, as the injunction order was not served upon him, he cannot be punished for contempt in disobeying it. The referee, upon evidence which we think justified it, has found that Stephen J. Pugh on the evening of December 7th, or on the next day, was fully cognizant of the service of such injunction, and of its contents. The court from the evidence has also found that he, with full knowledge of such injunction order, of its contents, and of the service of it upon the defendant Emery S. Pugh, while acting as the agent, servant, and assistant of said defendant, aided, abetted, and assisted the said defendant in removing, drawing away, and disposing of the hay in question. In *Koehler*v. *Bank,*6 N. Y. Supp. 470, affirmed 22 N. E. Rep. 1134, it was held that persons who have actual knowledge of the existence of an injunction order are bound by it, though it is not personally served on them. The case cited seems to be decisive of the question, and is adverse to the appellants’ claim. We are of the opinion that the findings of the court and referee were fairly and fully justified by the evidence, and papers read on the application for the order appealed from, and that no error was committed in granting that order. Order affirmed, with $10 costs and disbursements.