N. Y. Rep.] Opinion of the Court, per HAIGHT, J. sitting, in its immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority. 2. Breach of the peace, noise, and other disturbance, directly tending to interrupt its proceedings. 3. Willful disobedience to its lawful mandate. 4. Resistance willfully offered to its lawful mandate. 5. Contumacious and unlawful refusal to be sworn as a witness; or, after being sworn, to answer any legal and proper interrogatory. 6. Publication of a false, or grossly inaccurate report of its proceedings. But a court cannot punish as a contempt, the publication of a true, full, and fair report of a trial, argument, decision, or other proceeding therein." (Code of Civil Procedure, section 8.) Such contempt may be divided into two classes: 1. That which is committed in the immediate view and presence of the court; and 2. That which is committed out of court. When the contempt is committed in the view and presence of the court, it may be punished summarily; when not so committed, the party charged must be notified of the accusation, and have a reasonable time to make a defense. (Code C. P. section 10.) The publication of a false and grossly inaccurate report of a proceeding in court belongs to the latter class, and, as we have seen, the party charged must be notified of the accusation. It is urged on the part of the appellants that the court obtained no jurisdiction to punish them for contempt, for the reason that the order to show cause was based upon an affidavit of the district attorney, which was made wholly upon information and belief, and that it failed to specify the part or portions of the articles published which were claimed amounted to a contempt; and, also, that there was no sufficient evidence showing that the articles were published by the appellants and were grossly false and inaccurate. The conclusion reached by us renders it unnecessary to consider these questions in detail. The court undoubtedly obtained jurisdiction of the appellants when they appeared before it and were charged with the contempt. The only office of the order to Opinion of the Court, per HAIGHT, J. [Vol. 147. show cause was to bring them before the court; and, if it was issued on an insufficient affidavit, they must now be deemed to have waived the defect by their personal appearance and answer. If they deny their guilt, they doubtless have the right to have it established by evidence in so far as it is not within the personal knowledge of the court. The court had personal knowledge of its own proceedings. It could not, however, have had personal knowledge as to whether the appellants were the editors and publishers of the articles or as to whether the attorneys mentioned in the articles were the counsel of the so-called committee of fifty. But for the purposes of this case we shall assume that the proceedings were regular and that the evidence was sufficient to warrant the conviction. Our difficulty is with the formal mandate or judgment. As will be seen, it convicts the appellants of a criminal contempt and imposes punishment by fine and imprisonment. It does not specify the particular circumstances of the offense. In case of criminal contempt this is specifically required: "When a person is committed for such a contempt the particular circumstances of his offense must be set forth in the mandate of commitment." (Code C. P. section 11.) This is but a re-enactment of the Revised Statutes, which provided that "whenever any person shall be committed for any contempt specified in this article, the particular circumstances of his offense shall be set forth in the order or warrant of commitment." (2 R. S. 377.) Under the Revised Statutes it is called the "order or warrant;" under the Code it is called the "mandate of commitment." They doubtless mean the same and relate to the final order entered in the proceeding. This is no This is no new doctrine. Rapalje on Contempts, at page 178, says, "the final order must designate the particular misconduct of which the defendant is convicted." In De Witt v. Dennis (30 How. Prac. 131) MORGAN, J., says: "The order of conviction is not suf ficiently definite and specific, and does not properly describe the particular misconduct for which he is convicted." And for this reason the order convicting the person of contempt N. Y. Rep.] Opinion of the Court, per HAIGHT, J. was set aside. The same rule prevails in England. Oswald on Contempt, at page 158, says: "An order of committal is bad if it does not specify in what particulars the person committed has been guilty of contempt." In the Pollard case (2 P. C. 120) it was said that "No person should be punished. for contempt of court (which was a criminal offense) unless the specific offense charged against him was distinctly stated." (See, also, In re John Rea, 14 Cox's Criminal Law Cases, 139; Reg. v. County Court Judge of Lambeth, 36 W. R. 475; People ex rel. Johnson v. Nevins, 1 Hill, 154.) The reason for the statute is perfectly apparent. In the criminal contempts committed in the immediate view of the court it may punish summarily. The only record preserved is in the final order or mandate of the court entered in the minutes of the clerk. If the particular circumstances of the offense were not required to be set forth, there would be nothing that the accused could have reviewed, or that he could interpose as a defense to a subsequent conviction for the same act. If the court saw fit to call his act, no matter what it might be, a criminal contempt, that determination would of necessity be final, even though the act of the accused consisted in the putting on of his hat as he was going out of the court room door, and failed to come within any of the provisions of the Code constituting a contempt of the court. The rule applies with equal force to contempts which are not committed in the presence of the court, and its importance is made apparent in the present case. The articles published, as we have seen, contained numerous accusations and denunciations of the judge. These accusations and denunciations may be libelous, but they were not within the statute contempts of court. It was only in so far as the articles complained of purported to give the proceedings of the Court of Sessions that there could be any contempt. The publication of these proceedings could not be a contempt if it were true and fair. The appellants, therefore, had the right to know whether they were adjudged guilty because of the publication of such pro ceedings of the court, or whether they were adjudged guilty by reason of other matters that appeared in the articles. The order appealed from should be reversed and the proceedings dismissed, but, under the circumstances, without costs to either party. All concur, except PECKHAM, J., not sitting. JACOB BOOKMAN, Respondent, v. THE NEW YORK ELEVATED 1. ELEVATED RAILROADS - UNIMPROVED LOCALITIES INCREASE OF VALUES. Where an elevated street railroad enters a vacant and uninhabited locality, which normal city growth has not effectively reached, which improvement has not seriously touched, which remains to be developed, and which has no element of growing value except such as lies in hope and expectation, and thereupon and thereby population and growth are diverted to the new line of rapid transit, creating a steady increase of values both directly on the line and in the side streets near by, the only inference is that the increased values are the product of the newly-opened line, and the courts are justified, in such a situation, in denying any force to the speculations of experts or to a greater increase in the side streets, and in refusing an award of damages to an abutting owner. 2. IMPROVED LOCALITIES-INCREASE OF VALUES. Where, however, the elevated road enters an area already substantially built up and improved, the average rate of the observed increase in such locality can be approximately ascertained, and if the rate continued after the construction of the elevated road, in the side streets, but a less rate of increase is found on the avenue occupied by the cars, and facts are shown explaining such loss by evil effects of the new line, it is possible to infer that the avenue property has not shared as it should in the normal and independent increase of value to the extent to which it was entitled. 3. DAMAGES RULE DEFINED. If, in an action by an abutting owner against an elevated railroad, the proof shows that before the coming of the elevated road in the particular locality that locality was substantially or mainly vacant and not built up, and that after the road came the building and improvement swiftly followed, accompanied by steady and serious increases of value, no damages should be awarded, and the complaint should be dismissed, even though the side streets had appreciated more rapidly than the avenue occupied by the elevated road. But if the proof shows that the elevated road has occupied a locality already substantially built up, in which normal city growth is operating and seriously increasing values, but as a consequence of the road the natural advance has halted or palpably lessened, while in the adjacent side streets it continues, there is possible an inference of fact that the abutter has been injured. 4. DAMAGE - FAILURE OF PROOF. In an action brought by the owner of property abutting upon Third avenue, in New York city, to restrain the operation of an elevated railroad in front of his premises, and for damages caused thereby, the plaintiff recovered a judgment. The trial court found that the plaintiff's property was injured by the railroad over and above all benefits, but there were also findings to the effect that the locality was previously substantially vacant and unimproved, or at the most only partially built up, while soon after the construction of the elevated road it was compactly built up; that both the rental and fee values of the property had largely increased since the building of the road; that the presence of the road, with its stations near by, had brought multitudes to the locality, increased business and benefited the fee and rental values, in which benefit property in the adjacent side streets had also shared; that the increased accessibility had induced settlement and building; that the same improvement would not have occurred in the absence of rapid transit, and that the elevated road had been one of the great and efficient factors in building up the locality. Held (GRAY, O'BRIEN and BARTLETT, J.J., dissenting), that the finding that plaintiff's property was injured by the railroad over and above all benefits conferred was wholly unsupported by proof and contradicted by the specific findings; that the fact that there may have been a greater increase of value in the side streets than in the avenue, due in part, at least, to the influence of the defendant's road, did not prove or even indicate damage in a situation like the present, and that the judgment should be reversed. Bohm v. Met. Elevated Ry. Co. (129 N. Y. 576), followed; Becker v. (131 N. Y. 509), and Storck v. Same (131 N. Y. 514), discussed. Bookman v. N. Y. El. R. R. Co. (9 Misc. Rep. 727), reversed. (Argued June 10, 1895; decided October 29, 1895.) Same APPEAL from judgment of the General Term of the Superior Court of the city of New York, entered upon an order made July 10, 1894, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at an Equity Term. This action was brought to restrain the operation and maintenance by defendants of their elevated railroad in front of plaintiff's premises, in Third avenue, New York city, and for the recovery of damages caused thereby. |