In the latter part of December, 1890, Hiram Klock and Edgar A. Tiffany confessed three judgments; one to the First National Bank of Oswego for $2,525, another to the same bank for $131.56 and one to Jacob M. Mertens and Alexander Dissell for $14,296.33. The judgments were entered and docketed in Oswego county, and executions thereon were issued to the sheriff of that county and by him immediately levied upon the property of the defendants in that county. The sheriff advertised the property for sale on the 2d day of January, 1891, at 10 o'clock A.M. On the first day of January, 1891, the above-named respondents, *Page 264 constituting the firm of Cauffman, Dinklespiel Co., doing business in Rochester, presented to the county judge of Monroe county an affidavit of Cauffman entitled in an action by the respondents against all the parties to the judgments confessed, John Van Buren, sheriff, and two other persons, and applied to him for an injunction against the defendants. The affidavit stated that in August, September and October, 1890, Klock Tiffany purchased of the plaintiffs in that action merchandise at the agreed price of $1,346.75 which they had not paid; that at the time of such purchase they made certain false and fraudulent representations as to their financial ability; that the judgments above specified were fraudulently confessed and were irregular, fraudulent and void, as were also the executions issued thereon; that on the 31st day of December, 1890, in an action brought by the plaintiffs against Klock Tiffany, for the recovery of the purchase price of the goods sold to them, "a warrant of attachment was duly granted and issued which has been or will be levied upon tangible property of said defendants Klock Tiffany;" that the action in which the affidavit was made was brought for the purpose of obtaining the judgment of the court that the judgments by confession were void; that the plaintiffs' lien under the attachment was superior to the lien of the judgments; that they were entitled to an injunction restraining the defendants from any interference with the property of Klock Tiffany, and restraining all proceedings under the judgments and executions; that the defendants threatened and intended to sell the property levied upon on the second day of January, unless restrained and that if the sale took place great and irreparable damage would be done to the plaintiffs and their attachment would be unavailing and their claim against Klock Tiffany would be lost and useless. No other papers were presented to the county judge. Upon this affidavit he granted to the plaintiffs an injunction order restraining the defendants from interfering with or selling any of the property of Klock Tiffany. At the time of granting the injunction, the action had not been commenced, *Page 265 and the attachment had not in fact been served. It is undisputed that the attachment was served in the forenoon of January second, and the summons and injunction in the equitable action were served together in the afternoon of the same day. After the service of the attachment and injunction the sale under the executions was postponed until January three, when the sheriff sold the property to Frank Hopkins, one of these appellants, who was at the time one of the attorneys for the sheriff and some of the other defendants in the equitable action. Thereafter the plaintiffs in the equitable action, these respondents, instituted this proceeding to punish these appellants, the sheriff and his attorney for contempt in violating the injunction. The proceeding was instituted by a petition of the respondents addressed to the Supreme Court, verified on the 21st day of January, 1891. Upon the presentation of the petition to a judge of the Supreme Court he made an order requiring these appellants to show cause at a Special Term of the court to be held in Rochester on the 28th day of January, 1891, why they should not be punished for the alleged contempt. Such proceedings were taken upon that order that the court adjudged them to be guilty of contempt, and it fined them for the purpose of indemnifying the respondents for the loss occasioned to them by the disregard of the injunction the sum of $1,470.32, the full amount of the claim of the respondents against Klock Tiffany. The order imposing the fine is brought under review by this appeal.
If the county judge had jurisdiction upon the facts presented to him to grant the injunction, the defendants in the action were bound to obey it, although the exercise of the jurisdiction was plainly erroneous. (Erie Railway Co. v. Ramsey, 45 N.Y. 637.)
If, however, it was granted without jurisdiction it was a nullity and bound no one. I propose now to confine my attention to the question of jurisdiction.
There is no general power in the equity courts of this state to grant injunctions. They have only such powers in that *Page 266 respect as are given to them by the Code, and to its provisions we must look for its jurisdiction. (Spears v. Mathews,66 N.Y. 127.) Section 603 of the Code provides that "when it appears from the complaint that the plaintiff demands and is entitled to a judgment against the defendant restraining the commission or continuance of an act, the commission or continuance of which during the pendency of the action would produce injury to the plaintiff, an injunction order may be granted to restrain it." The right of a plaintiff to an injunction order under this section depends upon the nature of the action as disclosed by the complaint, and the facts authorizing the injunction must exist at and before the commencement of the action, and relief by injunction must be demanded in the complaint. This section provides for every case where the plaintiff is entitled to an injunction on account of facts existing at and prior to the commencement of his action. Under this section the injunction may be granted to accompany the summons and complaint, and to be served with them and at the same time; and it may also be granted and served at any time after the commencement of the action. If properly granted under this section it may even be served before the commencement of the action and the party against whom it was granted would be bound to obey it, as he might be bound to obey an injunction before it has been served upon him if he has notice that it had been granted. (Daly v. Amberg, 126 N.Y. 490.) This is so because the court or officer having jurisdiction to grant the injunction it became a valid binding process.
This injunction was not granted, and could not have been granted under this section, because at the time it was granted there was no complaint in the action, and none came into existence until February 11, 1892, more than two weeks after this proceeding was instituted. And further, if we look at the complaint we find that it contains no demand for relief by injunction, and no mention whatever of an injunction or any restraint.
The only other section of the Code under which the respondents *Page 267 can claim to uphold the injunction is section 604, which provides as follows: "In either of the following cases an injunction order may also be granted in an action: 1. When it appears by affidavit that the defendant, during the pendency of the action, is doing, or procuring or suffering to be done, or threatens, or is about to do or to procure, or suffers to be done, an act in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual, an injunction order may be granted to restrain him therefrom. 2. When it appears by affidavit that the defendant, during the pendency of the action, threatens or is about to remove or dispose of his property with intent to defraud the plaintiff, an injunction order may be granted to restrain the removal or disposition." Under this section, an injunction can be granted only for acts being done or threatened after the action has been commenced and during its pendency, and unless the action be pending there is no jurisdiction to grant the injunction. Such is the plain language and import of the section, and so the scheme of the Code as to injunctions is complete. The one section provides for the cases where the facts existing at the commencement of the action entitle the plaintiff to relief by injunction, and the other section provides for cases where facts subsequently occurring entitle the plaintiff to such relief, and the two sections provide generally for all the cases.
Here, as I have stated, this injunction was granted under section 604, when no action was pending. There was not, therefore, a case in which an injunction could be granted, and the county judge was absolutely without jurisdiction to grant it. There was no evidence before him of any kind that the action was pending, or tending in any degree to show that it was pending, and thus there was nothing to call for the exercise of his jurisdiction. It is of no importance that the action was subsequently commenced by the service of the summons, and that the injunction was served at the same time. The validity of the injunction must be tested by the facts existing when it was granted and properly placed before the county judge. *Page 268
This injunction was, therefore, a nullity, and the appellants could not be legally punished for disobeying it.
I have not overlooked section 608 of the Code, which provides that the injunction order "may be granted to accompany the summons, or at any time after the commencement of the action and before final judgment." All these sections must be construed together and harmonized. Clearly every injunction order cannot accompany the summons into the hands of the person who is to serve them. An injunction order which cannot be granted until after the action has been commenced cannot accompany the summons. Manifestly the provision means that every injunction order which has been validly granted may accompany the summons, not that an injunction order granted without jurisdiction, which is a nullity, may accompany the summons. Any injunction order granted under section 603 may accompany the summons, and never one granted under section 604, which can have no existence until after the action has been commenced.
If these respondents, not being judgment creditors, could, upon any theory, maintain their equitable action to set aside the judgments and executions as fraudulent and void, they could do so only by showing that they had, by the levy of their attachment, obtained a lien upon the property of Klock Tiffany at the time they applied for the injunction. Such an action, if maintainable, would be in aid of the attachment to remove the fraudulent obstacles and obstructions placed in its way. But here, at the time the injunction was applied for and granted, the attachment had not been levied, and the respondents had no lien upon the property of Klock Tiffany. There was, therefore, at that time absolutely no ground for the maintenance of the equitable action, or for the granting of the injunction, even if it be assumed that the action had been commenced. The respondents had no right whatever to the injunction, and it was manifestly erroneous to grant it. Although erroneous, we may assume that the injunction was not granted without jurisdiction on the ground here stated, and that the court, to maintain its dignity and *Page 269 authority, could punish the parties enjoined for contempt in violating it by a fine not exceeding two hundred and fifty dollars under the latter part of section 2284 of the Code. But could the court impose a fine under the earlier part of that section on the parties enjoined for the purpose of indemnifying the respondents? Could the respondents wrongfully obtain an illegal injunction to which, on the papers presented to the county judge, they had no legal right whatever, and thus commit an outrage on the rights of the defendants in the action and then claim that they were aggrieved by a violation of the injunction and ask for indemnity on account of such violation? In other words, could they be aggrieved and legally damnified by the violation of an injunction to which they had, on the papers presented to the county judge, no shadow of right? I leave these questions unanswered. The discussion of them would be quite interesting, but is unnecessary now, as the order imposing the fine must be reversed upon the ground before stated.
The orders of the General and Special Terms should be reversed and the petition of the respondents dismissed, with costs in all the courts.
ANDREWS, GRAY and O'BRIEN, JJ., concur with MAYNARD, J.; FINCH and PECKHAM, JJ., concur with EARL, Ch. J., dissenting.
Order affirmed.