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[Vol. 96. in the case to indicate any bad faith on the part of the defendant Horace G. Polhemus; there is nothing from which the inference may be fairly drawn that the plaintiff will suffer any injury from a mere delay in carrying out the powers vested in the executors, and, as suggested in the case of Haight v. Brisbin (100 N. Y. 219, 222), there is no doubt that the surrogate has the power, upon an accounting, to charge the executors with any loss to the estate resulting from negligence or bad faith. "While it is true," say the court, "that in the first instance that court could not order the sale of the real estate, and take upon itself the discretion and judgment committed to the executor, it could certainly reach the justice of the case by its power of removal and its authority upon an accounting." There being no allegation of malfeasance, no suggestion of fraud or collusion on the part of the executors, this action on the part of the plaintiff is merely one for an accounting, which is clearly within the jurisdiction of the Surrogate's Court, and the rule is well established that when complete relief can be obtained in a Surrogate's Court a court of equity will decline to entertain an action against executors. (Shorter v. Mackey, 13 App. Div. 20, 24, and authorities there cited.) This is in effect what the learned court at Special Term did; it refused to entertain jurisdiction of a matter which belonged to the jurisdiction of the Surrogate's Court, and the fact that this was coupled with a direction that "upon the completion of a sale of the premises mentioned in the complaint within thirty days from the date of entry of this order, all orders heretofore entered in said cause be and the same are hereby vacated, and that the complaint be dismissed," does not affect the question. The court had a right to dismiss the complaint, and if the order, in the effort to make an intelligent disposition of what appears to be a needless controversy, went farther than this and indicated what was to be expected of reasonable men, it was so far in favor of the appellants that they have no cause to complain. They contend that the property should be sold; the court has indicated to the executors that they may properly proceed to sell the same, and the accounting is properly left to the Surrogate's Court, where all the matters may be adjusted. Why should the plaintiff appeal from this order? It in effect gives the relief prayed for, if the demand for a sale of the real estate is

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made in good faith, and it assumes to dispose of the whole group of vexatious orders which have incumbered the record and tended to obscure the real issue in the case. The court might properly have dismissed the complaint and ended the matter there, but it has seen fit to go farther and to direct the executors, in effect, to carry out the expressed wishes of the plaintiff and those who are similarly situated, and yet they appeal, for reasons which, however satisfactory to themselves, do not impress this court as having substantial merit.

The judgment appealed from should be affirmed, with costs.

GOODRICH, P. J., and JENKS, J., concurred; BARTLETT, J., concurred in result.

Judgment affirmed, with costs.

OLIVER C. BROWN and ROBERT O. BROWN, Doing Business under the Name of "THE BENT GLASS NOVELTY Co.," Appellants, v. SIMON BRAUNSTEIN and SAMUEL LEWIE, Doing Business under the Name of "THE BENT GLASS GLOBE MANUFACTURING Co.," Respondents.

Contempt where the use of a system of figures is enjoined, the placing and use, before each figure of such system, of the figure 1 is a contempt a refusal to punish for contempt is reviewable at the Appellate Division.

A manufacturing firm which used a series of numbers to designate the goods manufactured by it, obtained an injunction restraining another firm engaged in a similar business from using such system of numbers to designate its goods. The firm thus enjoined thereupon changed the system of numbers by inserting the figure 1 in front of each of the old numbers and continued to use the figure system as thus modified.

Held, that the enjoined firm was guilty of a contempt of court.

While the punishment for contempt rests in the discretion of the court, a refusal to punish is reviewable at the Appellate Division.

APPEAL by the plaintiffs, Oliver C. Brown and another, doing business under the name of "The Bent Glass Novelty Co.," from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 14th day of April, 1903, denying a motion to punish the defendant Simon Braunstein as for a contempt.

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[Vol. 86.

Walter E. Warner, for the appellants.

Bennett E. Siegelstein [John D. Nussbaum with him on the brief], for the respondents.

The plaintiffs, doing business as the Bent Glass Novelty Company, brought this action on the 19th day of January, 1903, to restrain the defendants from using the name, "The Bent Glass Globe Manufacturing Co.," or other name similar to that in use by the plaintiffs, and also to restrain them from using their designs, patterns, photographs, etc., as well as "from using the numbers devised by the plaintiffs to facilitate their business with customers set forth in the complaint, or any similar numbers based on such numbers, or upon the system devised by these plaintiffs as aforesaid." The complaint set forth with considerable detail the plan by which the plaintiffs, in developing their business, had put out among the people dealing in their line of goods sample cases displaying the various styles and colors of glass globes, etc., which were indicated by numbers engraved upon the samples, and these were used in ordering the goods, being a much more certain method than a description by colors. The case came on for trial at Special Term, and resulted in a judgment in favor of the plaintiffs, granting all of the relief demanded in the complaint. Among other things, it was provided that the defendants should be perpetually restrained “from appropriating or using the system of numbers (described in the complaint and in the annexed circular of defendants) devised by these plaintiffs exclusively for the conduct of their business with their customers, and also from using any similar number or numbers based upon such numbers, or the system of numbers and samples devised by these plaintiffs," etc. This judgment stands unmodified and without appeal, but in the face of this mandate of the court, which has been duly served upon the defendants, Simon Braunstein, one of the defendants, has caused to be printed and circulated a circular in which the customer is told that " Owing to an injunction obtained against us by the Bent Glass Novelty Co., restraining us from using the name Bent Glass Globe M'f'g. Co., as well as the numbers formerly adopted by us to distinguish the several colors of glass, we hereby inform you that hereafter we will

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In the

conduct our business under the above firm name. * * * future our numbers designating colors will be known as follows:" Then follows a schedule in the following form:

This is followed out to embrace the entire list of numbers, or at least up to 45, which is to be known as 145. That is, the old number list, which was the number system of the plaintiffs, is changed by inserting the figure "1" in front of the old number, and the old number is given as the basis of the change, so that in effect the defendants, knowing that the court had forbidden the use of the plaintiffs' number system, deliberately reproduced the system in their circular, and tell their customers that in ordering they are to change the old numbers to the new numbers indicated. This enables the defendants, if they may be permitted to pursue this policy, to get all the advantage of the plaintiffs' system, and of their investment in sample cases, in violation of the letter and the spirit of the judgment, which is in exact harmony with the subject-matter litigated, and which the defendants have permitted to become absolute by not taking an appeal, or making any effort to have the same modified.

Upon a motion to punish as for a contempt, the learned court at Special Term denied the same, and from the order entered the plaintiffs appeal to this court, urging that if this order is permitted to stand, it in effect deprives them of the benefit of the judgment which they have secured in the orderly course of a judicial proceeding. In this view of the question we fully concur. This question

is in no sense similar to that under consideration in Ketchum v. Edwards (153 N. Y. 534), where the judgment did not fully point out the limits of a highway, which the defendant was forbidden to obstruct, and the court held that she could not be punished for a contempt in permitting an obstruction at a point which was not shown by the judgment to be within the highway. (See p. 538.) But in the case now before us the defendants call attention to the injunction and its scope in this very particular, and then deliberately make use of the number system as the basis for a new series of num

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[Vol. 86. bers. In the case cited, and which is called to our attention by the respondents, the court say: "It is, of course, not subject to debate that the order of a court having jurisdiction must be implicitly obeyed, however erroneous it may be, and that it is no answer for one called upon to answer for disobedience that the order or judgment was broader than the facts warranted, or gave relief beyond what was demanded or what the court, upon the facts, was justified in awarding. The interest in maintaining respect for the action of courts, and of orderly jurisprudence, forbids that litigants should be permitted, under plea of hardship or injustice, real or pretended, to nullify or set at naught orders or decrees, however improvidently made, even if it may seem certain that the court acted in granting them under misapprehension or mistake." It seems entirely clear that in the case now before us the defendants are not in a position to urge even the excuses suggested above as unavailing, for the judgment is in entire accord with the demand of the plaintiff's complaint, and would appear to be in full accord with the equities of that case, although we are not called upon to determine that question. The judgment, until reversed or modified, must be implicitly obeyed. (Ketchum v. Edwards, supra.) The defendants having, with full knowledge of the judgment, elected to make use of the plaintiff's figure system of designating the goods which they hoped their customers would order, have offended the dignity of this court. It is true that punishment for contempt rests in a measure upon discretion, but it is a judicial discretion, and the dignity of the court, as well as the interests of litigants, demands that where the deliberate judgments of the court are set at defiance, punishment shall follow upon the transgression.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion remitted to the Special Term for proceedings in accordance with this opinion.

BARTLETT, HIRSCHBERG and HOOKER, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion remitted to the Special Term for proceedings in accordance with the opinion of WOODWARD, J.