Mayor of New York v. Conover , 5 Abb. Pr. 252 ( 1857 )

Ingraham, P. J.

The plaintiffs, on filing their complaint, obtained an order for a temporary injunction, restraining the defendants. Conover and Willet from removing the books and papers from the street commissioner’s office, and from interfering therewith, and Devlin from delivering the same to Conover or anyone oh his behalf, together with an order for the defendant to show cause why such injunction should not be continued. The complaint showed that the books and papers referred to were the exclusive property of the plaintiffs; that Taylor, who was street commissioner, died, and that upon his death the deputy street commissioner, Turner, acted in his place, and while so acting had the charge of such books and papers; that Devlin was so appointed by the Mayor and Board of Aldermen, and entered upon the duties of the office, and was in possession of such boobs and papers, and as such officer was recognized by the plaintiffs; that the defendant Conover, claiming to be street commissioner, had commenced proceedings against Devlin to obtain possession of such books, &c., and that the judge before whom the proceedings were pending had made an order that Devlin deliver over the same to Conover; that warrants were about to be issued to enforce such order; that the seizure and removal of such books, &c., would be a serious interruption of the business of the department, and greatly impede the performance of its duties by the corporation to the public, and might involve the plaintiffs in. liabilities and litigation; that the books, &c., were valuable, and the plaintiffs required the constant use of them to enable them to perform their corporate duties, and that no damages could be assessed which would form an adequate compensation for the injury occasioned by the taking. The complaint asked for an injunction restraining the defendants from taking the said books, &e.

Considerable discussion has taken place as to the time when this injunction was allowed. A previous injunction had been applied for and obtained during the previous week, which was returned to me and cancelled, on the supposition, as the counsel stated, that the allowance of the certiorari rendered its use unnecessary. Afterwards, the second complaint was submitted to me and a new injunction asked for, which was signed on the day on which it bears date. The complaint contains the statement in regard to the certiorari which rendered the injunction necessary for the protection of the plaintiff’s interests. That statement was, that the warrants were about to be issued and the property delivered to Conover, notwithstanding the allowance of the certiorari. Upon such application, every thing contained in the injunction which could be construed as relating to the proceedings before the court or Hr. Justice Peabody was stricken out, and the order of injunction solely directed to the defendant for the express purpose of avoiding any order which could in any way be construed as applying to that judge, or to his action in the proceeding before him.

It has, however, been the custom of courts of equity, both in England and this country, to stay proceedings in another court by injunction. The books are full of cases of this character, and the right to do so has never been questioned. With much more propriety might such an order be made in regard to proceedings pending before a magistrate out of court, who, in the capacity in which he was acting, had no equity powers, and could not grant the relief which was asked for.

The right of the plaintiffs, upon the state of facts disclosed in the complaint, appeared to me to be clear, and entitling them to the relief sought. Is there any thing in the defendants’ affidavits changing that view of the plaintiffs’ claims ?

The property is averred to be the exclusive property of the plaintiffs, and this is not denied, other than by an allegation of the defendant that he is advised and believes the books, &c., are not the exclusive property of the plaintiffs, but are public records, which the plaintiffs have no right to take from the custody of the street commissioner. The defendant also asserts his right to the office, and, he denies any right on the part of Devlin to execute the duties of the office. I am bound, on these papers, to assume that the books are the property of the plaintiffs. This fact is positively sworn to on their behalf, while the denial of it is merely on advice and belief. If I am allowed to inquire beyond the papers, I think there can be no doubt that very many of the books and papers in the street commissioner’s office are the exclusive property of the plaintiffs, paid for out of the treasury, and not by assessment, while a great mass of the books and papers are necessary for the collection of moneys due to the city, the loss of which would occasion great, if not irreparable pecuniary damage to the public interests.

The views I entertain of defendant Conover’s claim to hold the office have been fully stated by me in the matter of Devlin on habeas corpus,^* and I refer to the opinion delivered therein, with the bare statement that the appointment under which he claimed to hold the office was not, in my judgment, valid, And conferred no right thereto.

It is said that the contemplated act of taking possession of the books by Conover was a mere act of trespass, and as such equity did not interfere, but that the party in possession had a right to resist by force and protect that right. In ordinary cases of trespass such a rule is correct. Equity does not, and ought not, to interfere to prevent every trespass in regard to personal property between individuals, when the matter in controversy is small in amount, or can be paid for by damages in an action for that trespass. But I do not consider that rule as applicable even to a case of a contemplated trespass where the injury would be great, where the property was of a peculiar value, and the damages such that they could not be compensated for by any remedy at law. In Jerome v. Ross (7 Johns. Ch. R., 315), the chancellor says—“ In ordinary cases the remedy of trespass has been found amply sufficient for the protection of property, and I do not think it advisable to introduce the chancery remedy as its substitute, except in strong and aggravated instances, where the mischief is remediless.” Again he says—“ I do not know of a case where an injunction has been granted merely because the defendant was a trespasser without showing that the property was of peculiar value, and could not admit of due recompense. In ordinary cases the damages assessed by a jury will be adequate for a check and for a recompense.” In Erpstein v. Berg (13 How. Pr. R., 91), Judge Davies granted an injunction merely to restrain the sale of some furniture in the defendant’s possession, and upon an argument refused to vacate it.

We are told that this being a mere trespass, the plaintiffs should be left to a remedy by law, or to defend their possession by force. I have already suggested one reason why an action at law is no remedy. The value of these books and papers to the city cannot be estimated. The large amounts due them on assessments, the evidence for which is only to be found in them, the liens which exist on real estate for assessments, and the evidence of sales of lands for a long period back, the records of which are to be found only here; the regulations of the streets in the city, and various other matters to which it is now unnecessary to refer, conclusively establish the great value of these books and papers to the plaintiffs peculiarly, as well as the public, as containing evidence affecting the real estate of this city to a very great extent. The complaint also shows that the removal of them from the office would greatly impede the public business, and that no adequate compensation could be obtained for the loss or destruction. That the plaintiffs are called upon, ■under such circumstances, either to resort to an action at law for damages, or to resist the taking of them by force, I cannot accede to. It is apparent, from what has already been stated, that - an action at law would give no adequate remedy. As to the propriety of compelling the plaintiffs to resort to force to defend their possession, instead of asking the aid of the court, I think there can be no hesitation. Judge Boosevelt says, in the opinion delivered by him, “ The plaintiffs being, as they allege, in possession, can defend themselves, in the ordinary course of law, against any illegal disturbance. They can resort to the criminal magistrate, or to the sheriff or his deputies, if they are right. Again, if the books are the private property of the plaintiffs, they must be protected by the same means, remedial or preventive, as apply to cases of assault and battery, and other threatened trespasses of a like nature.” I can hardly suppose that learned justice intended to be understood as recommending the plaintiffs to resort to open violence in order to retain the possession of this property. Bedress by the ordinary forms of law would be inadequate, and I should be very unwilling to hold that the public authorities would be justified in involving the city in disturbances such as have already taken place in regard to the possession of this office. We have already seen the effects of such attempted employment of force in the maintenance of rights, either supposed or real; and where the evils complained of can be remedied by the simple mandate of a court, quietly and peaceably issued and enforced, in a case involving interests as important as are embraced in this property, I think there should be no hesitation as to the course to be adopted.

It is also objected that this injunction is an interference with the decision of another tribunal. That decision was made between other parties. The plaintiffs had no right to defend their possession there. It could not have been brought in issue. They not being parties, have no right of reviewing the decision of the magistrate, and they are in nowise bound by that decision. It would be injustice to say to a party claiming property which is conceded to belong to him, that the right of a third person to that property has been decided by a magistrate in a proceeding between him and others, and therefore you can have no protection from the courts. The case presents this state of facts: The plaintiffs, claiming to be the owners of property of great value, the loss or destruction of which could not be repaired, and for which no adequate remedy can be obtained, ask from a court of equity an order of injunction to prevent the defendant from taking that property from the place in which they have been deposited, and from their possession and control. I see no reason why such relief should not be granted under the circumstances stated in the complaint.

There is one question yet remaining to which I have not yet referred. It is as to the answer which the defendants set up to the granting of this motion by reason of the alleged adjudication by Judge Boosevelt of the same question before him on the complaint filed in the Supreme Court praying for a similar injunction. That such a practice of renewing an application to one court after it has been denied in another is wrong, and should not be sanctioned, is undoubtedly correct, even if the first action is subsequently discontinued, although in the ordinary conducting of legal proceedings such a rule does not always prevail. A party may bring an action in one court and may fail in making out a case to entitle him to judgment; and such failure is not of course a bar to a second suit. But on motions for injunctions, if the complaint in the second action avers other facts not in existence at the time the first motion was made, the decision on the first motion forms no bar to the subsequent one.

The complaint submitted to Judge Boosevelt only set forth the title to the books and papers,—the application of Devlin as street commissioner,—and the threats of defendant Conover to remove the books from the office. Under such a state of facts, without reference to "extrinsic matters, the application might well have been denied, and the supposition entertained that the street commissioner was perfectly able to protect the books and papers in the office, without the aid of a court of law or equity. In the complaint submitted to me, the plaintiffs show in addition that Conover is claiming to be street commissioner under an appointment which they have refused to recognize,—that he has commenced proceedings for obtaining from Devlin the possession of this property,—that the magistrate before whom such proceeding is pending, has made an order for the delivery of the books to the defendant,—that the warrant therefor is about to be delivered to the defendant,—and that such seizure would expose them to being involved in liabilities and litigations. The rule as to second applications of this character is, that where new facts are stated in a supplemental bill, a fresh injunction may be awarded even though a former injunction has been dissolved upon the merits; and the same rule applies to a new action if the former one is discontinued (Fanning v. Dunham, 4 Johns. Ch. R., 35). In Livingston v. Gibbons (4 Johns. Ch. R., 257), the chancellor denied a motion to renew an injunction which had been dissolved, because the plaintiff had consented thereto: at the same time he says, “ I mean only to say that upon this motion, without any new and special reasons not existing when the injunction was dissolved, I shall not consent to renew the injunction.” In Cummins a. Bennett (8 Johns. Ch. R., 78), Chancellor Walworth says, “If the complainant had any grounds to justify the issuing of a new writ, he should have discontinued the first suit and paid the costs, and then have applied to the court before the second bill was filed for such new injunction.” A case very much in point may be found in Wood a. Bruce (9 Gill & J., 215). In this case a bill had been filed, and an injunction obtained, which was afterwards dissolved by the chancellor. Some time afterwards an application was made to another court, on a new bill, and a new injunction obtained. On motion, the. chancellor dissolved the second injunction, on the ground that the cause of action was the same. The plaintiff appealed, and on such appeal the order of the chancellor dissolving the second injunction was reversed. The court, in their opinion, say, “ The question is whether the case made by the first and by the second bills are identical. Between the dismissal of the first and the institution of the second suit a litigation had commenced in a court of law, which in its event might deprive the complainant of his property. For any thing which appeared in the first bill, the complainant might never have been in any manner disturbed in his possession. The claims there set up might never be attempted to be enforced in the proper tribunal.”

The reasoning in that case is very appropriate to the one under consideration. The complaint submitted to Judge Roosevelt only suggested as the reason for the injunction the threat of the defendant to take the books, &c. For aught that appeared therein, that threat might never have been carried into execution. Since the institution of that action, a litigation before a magistrate has sprung up, which was about to deprive the plaintiffs of their property against their will, and to which they were not even parties. They have no adequate means to prevent the injury but by a resort to a court of equity. Another reason given for the dismissal of that complaint was, that Conover, if street commissioner, could be removed by the Mayor and Board of Aldermen. Such removal, however, can only be for cause, if that section is applicable to the present tenure of office, and affords no answer in a case where the plaintiffs refuse to recognize the right of the defendant at all to the office. The reasons given for continuing the injunction against Conover apply to those defendants who have since been made parties by a supplemental complaint, and have interfered with the property.

Mr. Field, the counsel for Conover, is included as a defendant. Of the propriety of such a course, where nothing else is alleged against him, than the prosecution of the rights of his clients, I entertain much doubt. It is not necessary to the protection of the plaintiff’s rights, and its effect is to make advocates parties where they should have no personal interest. I have looked over the evidence in this case, but do not find that the defendant Field has done any thing except what falls strictly within his province as counsel. His course in regard to the injunction was not to be approved; but that furnishes no reason for continuing the injunction against him.

The injunction is continued against all of the defendants except the defendant Field, and as to him it is dissolved.

* Beported Post, 281.