FIRST DEPARTMENT, APRIL TERM, 1903. [Vol. 82. arose, even though the lien should be declared invalid. This Code provision is a re-enactment of section 15 of chapter 342 of the Laws of 1885. The language is significant in view of the fact that prior to this enactment it had been repeatedly held by the courts that the right to recover a personal judgment was incident to the foreclosure of the lien, and that such recovery could not be had unless a valid lien were established. (Weyer v. Beach, 79 N. Y. 409; Burroughs v. Tostevan, 75 id. 567.) Assuming that there is no valid lien, of course, the parties are entitled to a jury trial of the issues arising upon the contract upon which a personal judgment is demanded, but this provision of the Code may not be declared unconstitutional if it be within the power of the court to give it force and effect without depriving the parties of their constitutional right to a jury trial. I think this may be done either by laying down the rule that in an action to enforce a mechanic's lien where the validity of the lien is controverted, and, therefore, under this section of the Code there is danger that a personal judgment may go against the defendant in the action, either party is entitled to have issues framed and sent to a jury as matter of right under sections 970 and 974 of the Code of Civil Procedure, or by establishing the practice in such case that, in the event the court on the trial of the issues determines that the lien is invalid, an interlocutory judgment to that effect should be entered and the remaining issues sent to a jury, where notice has been given or demand made that in that event a jury trial is desired. In this case, however, there has been no motion to settle the issues, and there has been no demand or suggestion made by either party upon the trial that a jury trial was desired, and, therefore, since the defendants had notice that, even though the lien might be declared invalid, a personal judgment might be recovered in the action, they have waived the right to a jury trial. (Code Civ. Proc. § 1009; Dudley v. Congregation, etc., of St. Francis, 138 N. Y. 451; Lough v. Outerbridge, 143 id. 271.) This is not inconsistent with the opinion expressed by this court in McDonald v. Mayor (58 App. Div. 75), which was reversed on another point (170 N. Y. 409), for that was an action to foreclose a mechanic's lien filed under local acts to which the provisions of the Code were not applicable, and this section of the Code was not drawn to the App. Div.] attention of the court in the points of counsel or referred to in the opinion. It is clear, therefore, that the judgment as against the Mapes-Reeve Construction Company should be affirmed. I think the judgment against the surety company can also be sustained. The undertaking given by it is conditioned for the payment by the construction company of any judgment that may be recovered against the construction company upon the claim or demand specified in the notice of lien not exceeding the sum of $6,600. This was the form of bond required by chapter 605 of the Laws of 1895 (amdg. Laws of 1882, chap. 410, § 1836), which, however, was repealed on the 1st day of April, 1899 (Laws of 1899, chap. 195), fourteen days before this bond was filed. The bond required by the statute, in force at that time, to discharge a municipal lien was one "conditioned for the payment of any judgment which may be recovered in an action to enforce the lien." (Lien Law [Laws of 1897, chap. 418], $ 20, subd. 5, added by Laws of 1898, chap. 169.) It will be observed that the local law applicable to the city of New York in force in 1898, at the time subdivision 5 of section 20 of the Lien Law was enacted, required the giving of a bond in the form of that given by the surety company in this case, conditioned absolutely for the payment of any judgment that might be recovered in an action upon the claim or demand specified in the notice of lien against the person liable. This bond should be construed as a substantial compliance with the Lien Law existing at the time, and the surety company should be estopped from contending otherwise, since it enabled the contractor to obtain this money which he otherwise would not have been entitled to. There is no material difference between the phraseology of this bond, inadvertently prepared in accordance with the local law which had been repealed (Laws of 1895, chap. 605), and the undertaking required by the Lien Law to which reference has been made. The one was an absolute condition to pay any judgment recovered in an action upon the claim or demand specified in the notice of lien against the contractor, and the other to pay any judgment recovered against the contractor in an action to enforce the lien; but since section 3412 of the Code at the time of the last enactment permitted the recovery of a personal judgment against the contractor in an action to enforce the lien, even though FIRST DEPARTMENT, APRIL TERM, 1903. [Vol. 82. the lien be invalid, the bond must be deemed to have been made with reference to such a recovery. A former judgment recovered on the 5th day of November, 1900, in an action to foreclose a lien on this fund, wherein the plaintiffs were defendants and interposed an answer setting up the same cause of action as is pleaded in the complaint herein, is pleaded in bar. This action was then pending, having been commenced on the 1st day of July, 1899; but which of the actions was instituted first does not appear. Neither was the answer of the surety company, which was a party defendant, served on the plaintiffs as defendants therein, nor was the answer of the plaintiffs served upon the surety company. These plaintiffs defaulted upon the trial of that action. Both the decision and judgment therein contained a recital that these plaintiffs failed to appear upon the trial, and that the cause of action set up in their answer was dismissed “without prejudice to any other proceedings to enforce their claim." It is contended that subdivision 3 of section 3402 of the Code of Civil Procedure required these plaintiffs to prove their claim in that action, since it was not admitted by the complaint. The two actions should have been consolidated, as the one was brought presumably in ignorance of the commencement of the other (Code Civ. Proc. § 3401); but while the clause quoted remains in the decision and judgment, it cannot be successfully contended that the plaintiffs' rights were passed upon in that action, or that the judgment bars their enforcement in this. The answer of the surety company pleads a defect of parties defendant, but it is ineffectual, since it does not specify the defect. (Code Civ. Proc. §§ 490, 498.) It is claimed, however, that the city was a necessary party, and should have been joined as a defendant, and that the court should have refused to try the issues without its presence. (Steinbach v. Prudential Ins. Co., 172 N. Y. 471.) It does not appear that the city was interested in the litigation, or could be prejudicially affected. It seems to have been conceded that the moneys had been earned and were due and payable, and had been paid voluntarily upon the filing of the bond and discharge of the lien. It is also contended that the plaintiffs are not the real parties in interest. This claim is based upon the fact that, prior to filing the App. Div.] FIRST DEPARTMENT, APRIL TERM, 1903. lien, the plaintiffs assigned their contract as collateral security to the Phoenix Iron Company for materials to be furnished to them for use on this work. This was not an absolute sale of the interests of the plaintiffs, or an assignment of the contract, but a conditional transfer, the plaintiffs remaining the owners until some default by which the transfer was to become absolute, and this never occurred. After the commencement of this action the plaintiffs made a further assignment to the same party of their cause of action upon which this suit is based. There might have been then a substitution of parties plaintiff, but, as no motion for this was made, the plaintiffs have the right to continue the action, and they are in effect prosecuting it for the benefit of their assignee, who will be bound by the judgment and entitled to the recovery. (Code Civ. Proc. § 756.) It follows, therefore, that the judgment should be affirmed, with costs. PATTERSON and HATCH, JJ., concurred; VAN BRUNT, P. J., and MCLAUGHLIN, J., dissented. Judgment affirmed, with costs. JULIUS W. STOLTS, as President of J. & J. W. STOLTS, an Association Organized and Existing under and by Virtue of the Laws of the State of New York, Respondent, v. MORRIS TUSKA and ROBERT J. WRIGHT, Defendants, Impleaded with CARL D. JACKSON (the Latter Doing Business under the Firm Name of C. D. JACKSON & Co.), Appellant. Violation of an injunction order — punishment by fine and imprisonment — advice of counsel is not a justification—when it goes in mitigation of the offense servants and agents not served may be punished-punishment of the attorney advising it. A defendant in an action, who deliberately and intentionally violates an injunction order granted therein, may properly be fined the amount of the plaintiff's provable damages and expenses, and also be imprisoned until he manifests a willingness to comply with the injunction order. The fact that in violating the injunction order the defendant acted under the advice of counsel does not constitute a justification, but merely goes in mitiga APP. DIV.-VOL. LXXXII. FIRST DEPARTMENT, APRIL TERM, 1903. [Vol. 82. tion of his act, to the extent that the court is satisfied that the advice was sought, obtained and acted upon in good faith. Servants and agents of a party enjoined by an injunction order, who, with knowledge of the existence of the injunction, aid in its violation, and attorneys who advise such violation, are liable for contempt, even though the order has not been served upon them. In such a case the attorney should be visited with a more severe punishment than the client. APPEAL by the defendant, Carl D. Jackson, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of January, 1903, adjudging him guilty of contempt of court and fining him therefor. Albert Stickney, for the appellant. Charles M. Demond, for the respondent. LAUGHLIN, J.: The appellant has been adjudged guilty of contempt of court for having willfully disobeyed an injunction order made by this court on the 21st day of November, 1902, in accordance with the opinion delivered on the decision of an appeal by the plaintiff from an order denying a motion for an injunction in this action (76 App. Div. 137). The material facts relating to the relationship and rights of the parties are stated in our former opinion, and need not be restated here. Our decision established that the defendant Tuska was the owner of the dock, bulkheads and adjacent premises on the East river between One Hundred and Fifth and One Hundred and Sixth streets; that he leased a strip of land extending from One Hundred and Fifth street to One Hundred and Sixth street, a few hundred feet from the river, to the plaintiff, together with the right of access to and use of this dock; that he thereafter leased the southerly half of the lands lying between the lands thus leased to Tuska and the East river to the appellant Jackson, and subsequently leased the northerly half to the defendant Wright; that while as between him and the owner the plaintiff, at least, acquired the right of access to the dock from either street, and the use of any or all of the dock as might be necessary for the proper transaction of his business, yet as between the plaintiff and the owner and the subsequent tenants such access should be had over the premises last leased, and that part of the |