Anderson v. Smitley

Appellate Division of the Supreme Court of the State of New York

Decided December 2, 1910

Appellate Division of the Supreme Court of the State of New York · decided 1910-12-02

Appeal by the defendants, Jane Ann Smitley, individually, etc., and others, from an order of the Supreme Court made at the New York Special Term aiid entered in the office of the clerk of the county of New York on the 24th day of June, 1910, denying the said defendants’ motion to punish the plaintiff for .contempt of a' judgment in the first above-entitled action.

Decided 1910-12-02

Scott, J.:

¶1We have held in Anderson v. Smitley, No. 1 (141 App. Div. 421), decided herewith, that the injunction contained in the final decree entered on October 13, 1903, in the action then pending, is an effectual bar to the prosecution of the action commenced by plaintiff in May, 1908. It is but a single step further and a necessary corollary to hold that the bringing of the second action is a violation of the injunctive clause of the previous decree, and a contempt of court. The appellants’ motion to punish plaintiff as for a contempt must, therefore, be granted, the proceedings on the part *430of the plaintiff in the second-action stayed, and plaintiff specifically restrained from further prosecuting it.

¶2The Order should be reversed, with ten dollars costs and disbursements, and motion granted as above indicated.

¶3Ingraham, P. J.; McLaughlin and Dowling, JJ., concurred ; Laughlin, J., dissented.