Supreme Court, November, 1919. [Vol. 109. Owing to a change in the personnel of the chamberlain the warrants were not put through his office or the clearing house until February 17, 1919, and the defendant Craig claims that during the time which elapsed between the date of delivery to the chamberlain, on February eleventh, of the warrants and their payment on the seventeenth of February, he had no control or jurisdiction over the same; and his further claim is that on February 17, 1919, the subordinates in his office, without his personal knowledge and without any knowledge on their part of the restraining order, substituted the corporate stock for the ad interim certificates, and hence he should not be held accountable for such acts. The significant fact, however, remains that the order in question had been served upon him personally on February thirteenth, and nowhere in his statement does it appear that he in any wise recognized the order, nor did he communicate its contents or purport to his subordinates beyond the fact, as he says, of calling the attention of Mr. MacInnes, his chief accountant, thereto, nor does it appear that he ever notified the chamberlain's office that further action concerning the issue of the stock had been enjoined by the court. Good faith on the part of the comptroller required him to take affirmative measures to check any further acts necessary to consummate the forbidden transaction, and hence if he were guilty of no overt act of commission he certainly was guilty of a very serious act of omission in failing to communicate the fact of the issuance of this injunction to the city authorities and also to his subordinates. He certainly had full and complete knowledge of it, for the fact is undisputed that on the 15th day of February, 1919, he appeared in court, in person, before Mr. Justice Cropsey and argued against the continuance of this very same Misc.] Supreme Court, November, 1919. restraining order. The warrants or checks for the payment of the purchase by the sinking fund commissioners were not signed until February fifteenth or seventeenth, and the warrants were not marked paid by the bank until February seventeenth. Possessing, as he undoubtedly did, full and complete knowledge of the issuing of the restraining order, there was ample time between February thirteenth and February seventeenth, when the comptroller, whose signature was necessary to the validity of the warrants, could have stopped payment thereon by notifying the city depository, who, in turn, would have refused to honor the warrants as though notification had been given by the drawer of an ordinary check. He should have done this very thing, knowing of the existence of the court's order. Again, had the comptroller notified the chamberlain of the issuance and purport of the injunction and requested that official to withhold his signature, does any one seriously suggest that this would not have been done? In fact, it would have been the solemn duty of the chamberlain to refrain from participating in any way in the violation of an injunction of which he had notice. The defendant says: "The issue of the so-called ad interim certificates were complete contracts, and I had no power to recall them." The reasoning is fallacious and the excuse a puerile one. It was simply a transaction between two branches of the city government, concerning the city's evidences of indebtedness, the money represented being the city's money; and even assuming that these so-called certificates were in the nature of contracts evidencing an obligation to issue corporate stock in place thereof, still the fact remains beyond possibility of dispute that this is just what the injunction expressly prohibited. It cannot be seriously contended that one Supreme Court, November, 1919. [Vol. 109. branch of the city government would sue another to enforce such an obligation, and even had such action been for one moment thought of or attempted, the injunction itself would have been a complete defense or justification for not issuing the stock, and this even as against a purchaser other than a co-ordinate branch of the city government. The spirit of the injunction was not satisfied by inaction on the part of the comptroller which resulted in the performance of the prohibited act. Quite the contrary, the situation required prompt affirmative action on his part to prevent such performance. His duty required the taking by him of every possible precaution and active effort to prevent the consummation of an enterprise then only in its incipient stage, and to this end he should have resorted to all means within his power to prevent the delivery of both the receipts and corporate stock notes in lieu thereof. It will not do for him to claim that the transaction was attended to in the usual routine manner by his subordinates. He is the person responsible and his duty required that prompt notice should have been given to his subordinates to cease further action in the matter. The law governing the situation, as stated in Rumsey on Practice (Vol. 1, pp. 591, 592) is as follows: Injunction orders must be fairly and honestly obeyed, and are not to be defeated by subterfuges and tricks, on the part of those bound to obey them; they may be violated by aiding, countenancing and abetting others in violation thereof, as well as doing it directly, and the courts will not look with indulgence upon schemes, however skillfully devised, designed to thwart its orders. (Mayor, etc., v. N. Y. and S. I. Ferry Co., 64 N. Y. 622.) If the party restrained permit the act which is enjoined, to be done, by one over whom he has control, or if he assists or Misc.] Supreme Court, November, 1919. directs his servants or partners in doing such an act (Neale v. Osborne, 15 How. Pr. 81) or encourages it, he is guilty of a violation of the order. (Wheeler v. Gilsey, 35 How. Pr. 139.)" And in High on Injunctions (Vol. 2 [4th ed.], § 1458), the rule is stated as follows: "It is the clear duty of one who is enjoined from the commission of a particular act not only to refrain from doing the act in person but also to restrain his employees from doing the thing forbidden, and a mere passive and personal obedience to the order will not suffice. And when, by his own negligence and inattention, one who has been enjoined permits his agents, partners and employees to do the prohibited act, he may be punished for contempt in disregarding the injunction, and where defendant, against whom an injunction has been issued, negligently fails to take proper steps to insure obedience to the writ upon the part of his employees, he may be held guilty of a violation of the injunction." The same obligation rested upon him to apprise his fellow-officials in the city government concerning the issue of this injunction and of the obligations imposed upon him thereby. Can it be doubted that if he had done so these officials would not have joined with him in respecting the court's order? Upon being so informed, it would have been the moral and legal duty of these same officials to respect and obey the solemn mandate of the Supreme Court and not to countenance or further its violation affirmatively by action or negatively by inaction. Had the comptroller discharged his duty in this respect, I entertain no doubt but that these same officials would have cheerfully co-operated with him in what could be termed as a faithful and conscientious discharge of his duty as comptroller, and as a law-abiding citizen. The record, however, shows that he did none of these things. Why he failed Supreme Court, November, 1919. [Vol. 109. in his bounden duty is nowhere satisfactorily explained in his replying affidavits. In addition to holding the high and responsible office of comptroller, to which he was elected by his fellow-citizens, he is also a lawyer of standing at the bar, and has an enviable record of many years' practice in his profession. Surely, if any one should be held to a strict accountability and be expected to render due obedience to injunctions and orders of our courts, the comptroller is that man, but in the present instance I find that he was lamentably remiss in the discharge of his sworn duty. It may be that his assumed personal knowledge of the legal situation clouded his perspective, and that he saw the situation through glasses blurred with the mist of political or personal antagonism on the part of those whom he may have surmised were watching his every step, but this of course affords him no excuse in the present situation, and yet I am charitably enough disposed to entertain the belief that his action was not entirely wilful, but savors rather of indifference or carelessness, and this being so, I cannot bring myself to the point of finding him guilty of wilful or criminal contempt, but he is nevertheless, in my opinion, guilty of a constructive or civil contempt, and must be punished in some measure therefor unless he purges himself of the charge. The defendant also attacks the validity of the injunction order and asserts that it was void and inoperative at the time he is charged with violating it, for the reason that it does not briefly recite the grounds upon which it was obtained, as required by section 610 of the Code of Civil Procedure. This objection has no merit, and it seems needless to cite authorities upon the question. The following cases, however, are pertinent: Daly v. Amberg, 13 N. Y. Supp. 379, reported as a memorandum decision, 59 Hun, 624; affd., 126 |