The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-08-29
SUPERIOR Cnuar-CRaNSEnS.
The "Fou, Play" Injunction Case.
Before Judge Barnard.


This case came up again yesterday on motion by
counsel for plaintiff for an order of attachment
against the defendants for alleged contempt in
continuing the performance Of the drama Of
"Foul Play" on two successive evenings after the
service Of an injunction OF the Supreme Court re-
straining such performance
Mr.. Schafer on appearing on the part Of plaintiff,
had an order served upon him a few minutes prior
to his opening the case for his cent--an order to
show cause why the injunction which had already
been issued should not be granted Mr.. Schafer
complained OF this course being irregular prac-
tlce that after the injunction had been issued the
way for the defence 20 proceed was to move TO set IL
aside but after It had been issued and disregarded
the defence was not in position to appear in court
to make any motion whatever, and the only way 1t
could then be brought into court was by molon
on the part OF the plaintiff for an attachment for
contempt
Judge Barnard said that II has been represented to
him that the play produced after the service OF the
injunction was not the play which they had been
restrained from performing, but another vita the
same name, and that upon this representation he
had issued the order TO show cause.
Mr.. Schafer commended they had clear and distinct
allegations In their papers That the plays were
IDENTICAL perbat, et NterdttDa, except the scene OF
the sinking shipa mere mechanical effect that the
plays were different, that question would better
come up on their answers to interrogatores in the
contempt proceedings.
Judge Barnard said that If they had an afndaylt
showing violation OF the injunction the aelach-
ments must issue.
ME- SCndlcr tHcu pTOCeSuCut 10 Teuu dfuuuNts SHOW
ing that the play was continued with an appearance
OF defiance OF the court-usng 1t, In fact as an ad
The Court directed an attachment to issue against
Mr. Harkins, not bailabe. and an attachment against
Mr.. Moore bailabe In $4,000.
Mr. Booth supposed he had no right to interfere,
the matter OF applying Tor the attach nents being er
parte; but 1t seemed little inequtabie that such
difference should he made.
Judge Barnard said that he would direct non
ballabc attachments to issue az linst both.
Mr. Traphagen asked that some other disposition
be made. Why not allow Mr.. Moore to come in to-
morrow ana answer tue interrogatoriesf
Mr. Justice Barnard-rhere will be no court TO-
Mr. Traphagen thought this made it worse for his
client. He might be arrested and locked up till
Monday, when II might be that he had full excuse.
He would be personally responsible for Mr.. Moore's
appearance. After some further discussion the
Court took this TO Mr. Moore, and as TO Mr..
Harkins directed non bailabIe attachment to issue.
Mr. Booth then presented the case against the
continuance Of the injunction 1t was he said, sub
santiaIly made on the PLAINTIFFS papers, there being
no time to prepare affdavits Counsel! then pro-
ceeded to read the complaint, when Judge Barnard
interrupted him, statiug what he understood TO be
the substance OF the complaint that Mr.. Palmer had
OF their literary property In the play; that Mr..
Palmer had assigned to Mr.. Harkins for Mr.. Lloyd
the right to play 1t In New York and Brooklyn. and
the defendants were playing it and were irrcspon.
sible.
Mr. Booth said that this was exactly the gst Of the
complaint, and on II the plaintiff was not entitled 10
an Injunction. In the case OF Wallack against Flor
ence, Judge Barnard himself had vacated the IN.
yunVtipu VI STOuul, hulOHx otucts, thht iocal
license gave only qualified right, and that on such
right no injunction could be maintained. Besides
tins appeared that Mr. Harklns and Mr. Lloyd were
partners In the NATTER and therefore there could be
no injunction. He did not know whether the Court
would take notice OF facts thus paced before H. but
he had here the assignment to Mr.. Palmer. VIII oh
was from Boucicaut and Readc, OF their joint play.
Now subsequently they had had some dispute, and
Mr.. Boncicault alone had made version OF u, and
II was this latter, differing widely from the former,
which was being played at the Broadway theatre.
He presented both TO The Court that II might judge
Mr.. Shafer claimed that the decision IN the Wallack
ON different grounds from that Claimed oy
Mr.. Booth.
The Court reserved its decision.
Decisions.
Judge Barnard yesterday rendered decisions In the
following cases:-
Fye,igh u.s. Uade,hiR: Boiies, Recefrer, rs. Dt.fet
di.--Mot0ns denied.
Martin as. Lamb 81 dL--Thc share OF the widow
must be placed in the trust company TO carry out the
provisions OF the Will.
IN re Chds. A. HeDmdn--I see no reason why the
custody OF the child should be changed MOTION ae'
MED.
Fcpler rs. Gercne.-s17 90 must be deducted from