ings will not be restrained by injunction unless the tenant has some equity or defense of which the county judge has no jurisdiction. Same principle, Gilman v. Prentice, 3 State Rep. 544. This question is discussed in Bokee v. Hammersly, 16 How. 461. The decision in Bean v. Pettengill, 7 Robt. 7, is against the current of authority as to the right to an injunction in case of lack of jurisdiction. In addition to these grounds, it is held in Landon v. Supervisors of Schenectady, 24 Hun, 75, that the right of a tenant to remove a building may be sufficient ground for an injunction. Where a justice of a New York District Court refuses to appoint a guardian ad litem for an infant defendant, the latter cannot maintain an action to restrain the enforcement of the warrant; the remedy is by appeal. Jessurun v. Mackie, 24 IIun, 624; appeal dismissed, 86 N. Y. 622. An injunction will not be granted after the warrant of dispossession has been executed. Roberts v. Matthews, 18 Abb. 199. Nor where the defendant has a perfect defense to the proceeding, and does not show that he had no evidence to prove such defense. Seebach v. McDonald, 11 Abb. 95. Nor in any case where the defense could have been proven on the hearing. Rapp v. Williams, 4 T. & C. 174; Wordsworth v. Lyton, 5 How. 463; Smith v. Burr, 8 id. 168; Marks v. Wilson, 11 Abb. 87; Ward v. Kelsey, 14 id. 106; McGune v. Palmer, 5 Robt. 607. An injunction will not issue, because there exists a counter claim against the rent, if the landlord is solvent. Brown v. Metropolitan Gas-light Co., 38 How. 133. As to whether it will issue where it is claimed lease has been extended, see Rapp v. Williams, 1 Hun, 716; Crawford v. Kastner, 26 id. 440. An injunction will not be granted to one not a party to the proceeding merely because he is likely to be disturbed in his possession, the threatened injury not being irrepara ble. Aaron v. Baum, 7 Robt. 340; Many v. James, 37 How. 52. Where an action is pending for a renewal of the lease, if the tenant shows himself equitably entitled to a renewal, an injunction will issue. Graham v. James, 7 Robt. 468; Crawford v. Kastner, 26 Hun, 408. An injunction can issue after the warrant is issued. Griffith v. Brown, 28 How. 4; Forrester v. Wilson, 1 Duer, 624. In Carsels v. Fisk, 15 Week. Dig. 255, it is said that nothing short of an extreme case, clearly established, will justify an injunction to stay summary proceedings against a tenant. In Knox v. McDonald, 25 Iun, 268, it is held that an injunction should not issue to restrain the execution of the warrant, unless the plaintiff is making an oppressive use of it, or that the plaintiff's title to the premises has

terminated, or that the defendant has acquired some interest or equity in the subject-matter of the action which should be protected, or that the judgment was obtained by fraud or collusion. An injunction cannot be granted until there has been a final order in the summary proceedings. Matter of White, 12 Abb. N. C. 348.

An injunction will not be granted to prevent the landlord from instituting proceedings on the ground that he has extended the lease. That question is to be determined in the summary proceedings. Rapp v. Williams, 1 Ilun, 716. Before the final order in summary proceedings, an injunction can be granted against the petitioner, only in a case where it would be granted to stay proceedings in an action of ejectment. People v. Parker, 63 How. 3. After the entry of a final order awarding possession to the landlord by reason of the illegal use of the premises, the court has no authority to stay execution of warrant. Shaw v. McCarty, 2 McCarty, 235; Van Schaick v. Coster, id. 239. The justice loses jurisdiction by an indefinite adjournment, and the execution of his warrant thereafter should be restrained by injunction. Kiernan v. Reming, 2 How. (N. S.) 89; Brown v. Cassady, 34 Hun, 55. When the defense is an equitable one, if the District Court proceed with the case it may be enjoined. Crawford v. Kastner, 26 Пun, 440. There is no provision for stay on an appeal from a judgment in case of tenant holding over after expiration of his term, or in case of forcible entry or detainer, except where there are allegations of fraud or collusion in the proceedings, or that the magistrate has no jurisdiction. Coster v. Van Schaick, 64 How. 100.

CHAPTER XV.

PROCEEDINGS TO PUNISH A CONTEMPT OTHER THAN A CRIMINAL CONTEMPT.

§2266. In a case specified in section fourteen of this act, or in any other case where it is specially prescribed by law, that a court of record, or a judge thereof, or a referee appointed by the court, has power to punish, by fine and imprisonment, or either, or generally as a contempt, a neglect or violation of duty, or other misconduct; and a right or remedy of a party to a civil action or special proceeding pending in the court, or before the judge or the referee, may be defeated, impaired, impeded or prejudiced thereby, the offense must be punished as prescribed in this title.

Proceedings to punish for contempt are of two kinds, each having

a distinct object in view, the one to protect the rights of private parties, the other to protect the dignity of the court and to punish persons guilty of willful disobedience of the mandates. In the former case the purpose being to preserve private rights, it is immaterial whether the contempt was designedly or negligently committed, the power and duty of the court to redress the wrongs of the injured party are the same. If, for instance, a person transfer property or do any other act in disobedience of an injunction or other order, it can make no difference to the injured suitor whether it was done innocently or with evil intent. His loss is the same in either event, and proceedings to punish the offender with a view to adjusting the rights of the parties would look to indemnity only. Of course, if the disobedience was willful, the court could, at the same time that it enforced indemnity, inflict punishment for a criminal contempt; on the other hand, if the only purpose of the proceedings is to punish the prisoner and maintain the dignity of the court, the disobedience must be designed and willful, and hence the law terms this a criminal contempt. If, for example, one after examination wrongfully interpret and through this mistake disobey an order, the majesty of the law is not offended and the dignity of the court is not impaired, and as he is innocent of willful offense, the infliction of punishment could have no justification. The willful disobedience referred to in the statute relating to criminal contempts means conduct intentionally and designedly at variance with the mandate of the court. The disobedience need not be malicious, but it must be in pursuance of an intent to disregard the mandate of the violated order. People v. Aitken, 19 Hun, 327. The contempt must be such as to defeat, impede or impair a right or remedy to be punishable, Sandford v. Sandford, 2 State Rep. 133; but the rule is otherwise as to a criminal contempt, and a guilty party may be punished without proof that the adverse party has been injured, Stubbs v. Ripley, 39 Hun, 626; appeal dismissed, 102 N. Y. 734. The distinction between civil and criminal contempts is given. Matter of Watson, 3 Lans. 408; People v. Cowles, 4 Keyes, 46; Hawley v. Bennett, 4 Paige, 163; People v. Spaulding, 10 id. 284; People v. Hackley, 24 N. Y. 74; People v. Restell, 3 Hill, 289; People, ex rel. Munsell, v. Oyer and Terminer of New York, 101 N. Y. 245. The class of contempts intended to be punished under the provisions of this article does not include criminal contempts, and the codifiers say that they have "deemed it inexpedient to embody the practice relating to criminal contempts in this statute, not

only because such a course would be inconsistent with the rules laid down by us for our guidance in this revision, but also because we deem it inexpedient to restrict the courts by statutory provisions to a prescribed mode of procedure, in a matter so important and admitting of such a variety of circumstances with respect to the nature of the offense and the most appropriate method of punishment, as the proceedings necessary for the preservation of their power and dignity." The work undertaken by the codifiers in this chapter is a revision of a portion of part 3, chapter 8, title 13, of the Revised Statutes, relating to the contempts which infringe upon the rights or remedies of the parties and are punishable at his instance and particularly with a view to his compensation. The provisions of sections 14, 15 and 16 of the Code of Civil Procedure are as follows:

14. A court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court, may be defeated, impaired, impeded, or prejudiced, in either of the following

Cases:

1. An attorney, counselor, clerk, sheriff, coroner, or other person, in any manner duly selected or appointed to perform a judicial or ministerial service, for a misbehavior in his office or trust, or for a willful neglect or violation of duty therein; or for disobedience to a lawful mandate of the court, or of a judge thereof, or of an officer authorized to perform the duties of such a judge.

2. A party to the action or special proceeding, for putting in fictitious bail or a fictitious surety, or for any deceit or abuse of a mandate or proceeding of the

court.

3. A party to the action or special proceeding, an attorney, counselor, or other person, for the non-payment of a sum of money, ordered or adjudged by the court to be paid, in a case where by law execution cannot be awarded for the collection of such sum; or for any other disobedience to a lawful mandate of the court.

4. A person, for assuming to be an atttorney or counselor, or other officer of the court, and acting as such without authority; for rescuing any property or person in the custody of an officer, by virtue of a mandate of the court; for unlawfully detaining, or fraudulently and willfully preventing, or disabling from attending or testifying, a witness, or a party to the action or special proceeding, while going to, remaining at, or returning from, the sitting where it is noticed for trial or hearing; and for any other unlawful interference with the proceedings therein.

5. A person subpoenaed as a witness, for refusing or neglecting to obey the subpœna, or to attend, or to be sworn, or to answer as a witness.

6. A person duly notified to attend as a juror, at a term of the court, for improperly conversing with a party to an action or special proceeding, to be tried at that term, or with any other person, in relation to the merits of that action or special proceeding, or for receiving a communication from any person, in relation to the merits of such an action or special proceeding, without immediately disclosing the same to the court.

7. An inferior magistrate, or a judge or other officer of an inferior court, for proceeding contrary to law, in a cause or matter, which has been removed from

his jurisdiction to the court inflicting the punishment; or for disobedience to a lawful order or other mandate of the latter court.

8. In any other case, where an attachment, or any other proceeding to punish for a contempt, has been usually adopted and practiced in a court of record, to enforce a civil remedy of a party to an action or special proceeding in that court, or to protect the right of a party.

15. [Amended, 1877.] But a person shall not be arrested or imprisoned, for the non-payment of costs, awarded otherwise than by a final judgment, or a final order, made in a special proceeding instituted by State writ, except where an attorney, counselor, or other officer of the court, is ordered to pay costs for misconduct as such, or a witness is ordered to pay costs on an attachment for nonattendance.

§ 16. Except in a case where it is otherwise specially prescribed by law, a person shall not be arrested or imprisoned for disobedience to a judgment or order, requiring the payment of money due upon a contract, express or implied, or as damages for non-performance of a contract.

The other provisions of the statute referred to relate to contempts of the legislature and of boards of supervisors.

LEGISLATIVE CONTEMPTS.

1 R. S. 428, § 13. Each house has the power to punish as a contempt, and by imprisonment, a breach of its privileges, or of the privileges of its members; but such power shall not hereafter be exercised, except against persons guilty of one or more of the following offenses:

1. The offense of arresting a member or officer of the house in violation of its privileges from arrest as herein before stated.

2. That of disorderly conduct in the immediate view and presence of the house, and directly tending to interrupt its proceedings.

3. That of publishing any false and malicious report of the proceedings of the house, or of the conduct of a member in his legislative capacity.

4. That of refusing to attend, or be examined as a witness, either before the house or a committee, or before any person authorized by the house, or by a committee, to take testimony in legislative proceedings.

5. That of giving or offering a bribe to a member, or of attempting by menace or any other corrupt means or device, directly or indirectly, to control or influence a member in giving his vote, or to prevent him giving the same.

CONTEMPTS OF BOARDS OF SUPERVISORS.

2 R. S. 935, § 4. Whenever any person duly subpoenaed to appear and give evidence, or to produce any books and papers as herein provided, shall neglect or refuse to appear, or to produce such books and papers according to the exigency of such subpoena, or shall refuse to testify before such board or committee, or to answer any question which a majority thereof shall decide to be proper and pertinent, he shall be deemed in contempt, and it shall be the duty of the chairman of the board, or of the committee, as the case may be, to report the facts to the county judge or to a judge of the Supreme Court or of the Superior Court, or of the Court of Common Pleas of any of the cities of this State, who shall thereupon issue an attachment in the form usual in the court of which he shall be judge, directed to the sheriff of the county where such witness was required to appear and testify, commanding the said sheriff to attach such person, and forth with bring him before the judge by whose order such attachment was issued.