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Leffingwell v. Chave et al.

It may be difficult or impracticable, as observed, in Welles v. The New York Central R. R. Co., (26 Barb., 646,) to distinguish accurately between the different degrees of negligence. Yet one case can certainly be readily supposed in which a marked and practical distinction would exist. There might be a case of such misconduct on the part of an agent as would indicate a willful design to injure the party, a desperate recklessness which wantonly endangered the lives or property of all those who are in his charge, a case of personal misconduct, and yet the principal be responsible. In Weed v. The Panama Railroad Company, (5 Duer, 193, and 17 N. Y. R., 362,) the willful act of the conductor who managed the train was not allowed to be a ground of exemption for the Company.

But the averments of the answer seem to us to cover all such cases by denying that the injuries were caused by any fraudulent, willful or reckless act or misconduct, or gross neglect, or default; and the terms and import of the stipulation appear to amount to an agreement that the party was to have no redress for injuries arising from other degrees or cases of negligence.

We consider, also, that the parties were fully at liberty to enter into a contract of this nature. (1 Kern., 485.)

We think that the Court below erred, and that the order must be reversed, and the demurrer overruled.

Order reversed and demurrer overruled, with leave to withdraw demurrer, &c., on the usual terms.

BENAJAH LEFFINGWELL, Receiver, &c., v. WILLIAM G. CHAVE and Wife.

1. The provision of section 220 of the Code requiring that on the service of an injunction a copy of the affidavit on which it is granted be served therewith, is satisfied by the service of copies of whatever papers were laid before the Judge, and on which he ordered the injunction whether the allowance was upon a summons and a complaint duly verified or upon affidavits commonly so called.

Leffingwell v. Chave et al.

2. An injunction order may be allowed and signed by the Judge, and be delivered to the officer before the service of the summons upon the defendant; but the service of the order upon the defendant before the summons is served, is irregular and is ineffectual. (Code, §§ 220 and 99.)

3. An undertaking duly approved by the Judge, procured or furnished by the plaintiff or his attorney for the security of the defendant, and executed by any persons possessing the requisite qualifications, agreeing that the plaintiff shall pay to the defendant the damages he may sustain, is an undertaking "on the part of the plaintiff" within the meaning of section 222 of the Code, requiring security on granting an injunction. It is not necessary that it should be executed by the plaintiff or his agent or attorney.

4. Such undertaking must be given in form absolute and binding either the plaintiff, or some one or more who undertake for him, absolutely for the payment of such damages; and it may, if the Judge require sureties, also bind others as sureties in form and in terms as sureties. There should be a principal and the Judge may require sureties; but such principal may be one who undertakes on behalf or for the plaintiff, without the latter being a party to the instrument.

5. The neglect to file the papers upon which an injunction is granted, within the time prescribed by the rules of Court, may be excused, and it does not render the service of the injunction a nullity or require that it be set aside. (Before WOODRUFF, J.)

At Special Term; Heard and decided, April, 1860.

UPON the summons and complaint in this action with the usual affidavit of verification, and upon an undertaking executed by two persons, neither of whom is the plaintiff, an injunction order was granted by a Justice of this Court before the summons had been served on the defendants, and the injunction order was served with the summons and complaint upon each of the defendants. The summons and complaint upon which the injunction order was granted had not been filed when the notice of the motion was served.

The defendants move to vacate the order of injunction or dissolve the injunction, or set aside the service thereof, &c., on various grounds, viz., that the affidavits upon which the injunction was granted, were not served therewith; that the injunction was granted and signed by the Justice before the action was commenced (i. e., before the actual service of the summons on either of the defendants); that the undertaking was not executed by the plaintiff nor by any person on his behalf, but by sureties only; and that the papers upon which the injunction was granted

Leffingwell v. Chave et al.

were not filed within five days as required by the rules of Court. (Rule 4.)

The plaintiff showed that after receiving notice of this motion he filed the papers, it having been omitted theretofore through inadvertence.

Bliss & Barlow, for defendant, in support of the motion cited in support of the aforesaid grounds thereof:

1st, Code, § 220; 8 How. Pr. R., 87; 9 id., 426.

2d, Code, §§ 99 and 220; 5 Duer, 118.

3d, Code, § 222; 1 Duer, 666; 4 S. & M., 683.

4th, Court Rule No. 4; Code, § 470; O'Donnell v. McMunn, 3 Abb., 391.

Charles E. Jenkins, for plaintiff.

WOODRUFF, J. The objection that the affidavits upon which the injunction was granted were not served is not insisted upon. The plaintiff's affidavit shows that no other affidavit than the complaint duly verified was presented to the Justice for the purpose of obtaining an injunction; this is sufficient for that purpose. By the plain terms of section 219, a temporary injunction may be granted, when it "appears by the complaint" that a case exists in the plaintiff's favor entitling him to have the defendant restrained. Whether under the language of section 220 requir ing that "a copy of the affidavit" be served with the injunction, the complaint and verification are to be regarded as "an affidavit" as sometimes held, or the requirement of section 220 in this respect be held to relate only to cases in which the injunction is obtained upon affidavit (strictly so called) after the suit has been commenced. In either view it is sufficient to serve with the injunction the complaint and verification upon which it was granted.

The next objection denies the jurisdiction of the Justice to grant an injunction order before the actual service of the sum

mons.

The language of the 220th section is, "the injunction may be granted at the time of commencing the action, or at any time. afterward before judgment," &c.; and section 99 declares that Bosw.-VOL. V.

89

Leffingwell v. Chave et al.

"an action is commenced as to each defendant when the summons is served on him or on a co-defendant who is a joint contractor or otherwise united in interest with him;" and section 127, "that civil actions in the Courts of record in this State shall be commenced by the service of a summons."

Under these provisions it is plain, I think, that an injunction order cannot become operative until the summons in the action has been served; and that the service of an injunction upon the defendant, prior to the service of the summons, would be irregular and ineffectual.

It does not follow, that the injunction order may not be signed by the Justice preparatory to such service and be delivered by the Justice to be served with the summons, although until the summons is served it has no effective operation.

The language, the injunction may be granted "at the time of commencing the action or at any time afterwards" was meant to define two periods. If the summons must in all cases be served before the Justice has jurisdiction to grant the order, then no injunction can issue until after the action has been commenced, and the words "at the time of commencing the action" are without meaning and superfluous; but the Code means that a plaintiff may not only have an injunction after his action is commenced, but that he may have it at that prior time described by the words "at the time of commencing" his action. And in this connection, those words mean while the work of commencing the action is going on and not after it is finished.

It imports that the injunction may be obtained so that it shall operate at the time when and so soon as the action is commenced, and not alone after it is commenced.

This accords with good sense. It meets a very large class of cases in which it is of vital importance to a plaintiff to enjoin the defendant at the very instant he is apprised that an action is commenced, and in which the defendant would, but for such injunction, defeat the very object of the suit.

The section which declares that the Court is deemed to have acquired jurisdiction in a civil action from the time of the allowance of a provisional remedy (§ 139) is in harmony with this construction, and sustains it.

Leffingwell v. Chave et al.

The objection that the undertaking was not signed by the plaintiff or his agent, or by some person who in very terms is described on the face of the undertaking as acting "on the part of the plaintiff," raises a question in regard to which there has been some conflict of opinion.

The language of the 222d section is, that "the Court or Judge shall require a written undertaking on the part of the plaintiff, with or without sureties, to the effect that the plaintiff will pay to the party enjoined, such damages," &c.

In my opinion the just meaning of this language is satisfied, and all the proposed benefits to the defendant are secured by construing the words "on the part of the plaintiff," as simply words of contrast or opposition to the part of his adversary. And that an approved undertaking, executed by any persons of competent ability, agreeing that the plaintiff shall pay to the defendant the damages which he may sustain, if it be procured and furnished by the plaintiff or his attorney for the security of the defendant, is an undertaking on the part of the plaintiff within the meaning of this section.

If this be not so, then on the part of the plaintiff can only mean "executed by the plaintiff." No other person can execute it who would not be (as between him and the plaintiff) a mere surety.

It is suggested that his agent or attorney may execute the undertaking. No doubt he may, but if he executes it by the plaintiff's authority then it is in law the plaintiff's undertaking and not his own; if he have no such authority, then he executes it just as any other person would execute it, binding himself and not the plaintiff, and he is just as much a surety as any other person would be.

Suits are often necessary when a plaintiff is out of the State, or sick, or under disability, or an infant, or otherwise incompetent or unable to execute an undertaking, or to authorize any agent or attorney to do so. I cannot concede that it was intended that in such case no injunction should be issued.

The words "by the plaintiff, with or without sureties," had they been used, would be plain and would require the plaintiff to execute, but the words "on the part of the plaintiff, with or without sureties," are fully satisfied if any person or persons in aid of the prosecution, acting in furtherance of the action, at the

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