Hayward agt. McDonald et al. it proceeds, as palpably it must, upon some special equities entirely foreign to the case against the heirs under the statute. These equities, as we have gleaned with some difficulty from the perusal of this exceedingly loose and confusing complaint, are the insolvency of the executors and the fact that the services rendered under the contracts tended to the conservation and protection of the estate. It is apparent that this is a distinct action from an action under the statute against the heirs upon contracts made by the testator in his lifetime; distinct in its scope and object, and requiring different parties, allegations and proofs as to the parties. It has been repeatedly held that in an action by a creditor to charge the heir in respect to lands descended, the personal representatives cannot be joined (Mersereau agt. Ryerss, 3 Comst., 262, citing Butts agt. Genung, 5 Paige, 259, and Schermerhorn agt. Borhydt, 9 id., 45). The heirs must all be sued jointly (Code, sec. 1846), and they are respectively liable, to the extent of the estate which descended to them, for debts of the deceased growing out of his contracts (Sec. 1843). A method is provided of enforcing this liability either by charging the estate, if it has not been aliened (Sec. 1852), or, if it has and the creditor so elects, by charging the heir personally (Sec. 1854). Under no circumstances, however, are the heirs personally liable for debts incurred by the executors. If, then, these debts, which the law treats as personal obligations of the executors, are to be impressed upon the decedent's real estate at all, it can only be, as already suggested, by the application of equitable principles entirely foreign to the statutes regulating "actions relating to decedents's estates." That some such action might be maintained "in case of the fraud or insolvency of the executor" was hinted at in Ferrin agt. Myrick (41 N. Y., 325), but it was "an equitable cause of action," which as the court intimated "would probably be created against the estate." In this same case Mr. justice HUNT, after reviewing the authorities, held the principle to be settled, that causes of action against executors as such—that is, upon con Roosevelt agt. Edson. tracts made with the testator in his lifetime cannot be united with causes of action against the executors upon contracts made after his death. A fortiori, it would seem to follow that a special statutory action to charge the heirs and their grantees with the decedent's obligations should not be united with a special equitable action to have the executor's obligations decreed to be a lien upon the estate. There are other seemingly fatal objections to this complaint, e. g., the assumption that the heirs and their grantees are bound by the judgments recovered against the executors and the consequent failure to state any cause of action against the decedent. As we understand it, a judgment against executors is only prima facie evidence in the surrogate's court, and when there was a trial upon the merits. It is also questionable whether any cause of action is stated against Mr. Fine. But upon these and other points it is not necessary at present to express a definite opinion, as the demurrer, for the reasons already assigned, must be sustained, and the plaintiff in severing his actions, and otherwise amending, may, by appropriate averments and greater care, avoid some of these questions. There must be judgment for the defendants upon their demurrer, with costs, but with leave to the plaintiff to amend his complaint within twenty days upon payment of such costs. N. Y. SUPERIOR COURT. THEODORE ROOSEVELT and others, plaintiffs, agt. FRANKLIN EDSON, impleaded with others, defendant. Injunction - Contempt - When and under what circumstances municipal officers may be restrained from making appointments to office — When guilty of contempt for disobeying injunction - Code of Civil Procedure, sections 603. 604, 399, 607, 605, 2284, 9, 8, 10, 2269, 606, 722, 277, 1809 to 1813. Upon a motion to punish the defendant, the mayor of the city of New York, for contempt in disobeying an order of injunction restraining Roosevelt agt. Edson. him from appointing to, or nominating for, the office of commissioner of public works, or the office of counsel to the corporation, any person until the further order of this court. After adopting the conclusions reached by judge TRUAX on the dissolution of this injunction (see, ante, 205): Held, first, that the decision of judge TRUAX is no bar to the present application. During the existence of the injunction the defendant was bound to obey it, unless it was not merely voidable but absolutely void, for the reason that it was made without any jurisdiction whatever. Second. A party will be in contempt for breach of an injunction, if the officer allowing it had jurisdiction, notwithstanding that it was erroneously granted, and for an insufficient cause. Third. A judge of the court of common pleas is a county judge within the meaning of section 606 of the Code of Civil Procedure, and under section 772 an order may be granted by a judge of the court out of court; it may be made by any justice of the supreme court, or by any judge of the superior court in the county wherein his court is located, or by the county judge of the county where the action is triable, or in which the attorney for the applicant resides. Fourth. Section 1809 of the Code of Civil Procedure does not apply to the corporation of the city of New York, nor to any officer thereof. Fifth. While in a case falling within section 603 of the Code of Civil Procedure, which applies to this case, the court or judge as a matter of orderly practice should insist upon the presentation of a formal complaint at the time of the application for an injunction, a failure to do so on granting the injunction, though it may constitute ground for a subsequent motion to vacate, is not a jurisdictional defect which renders the injunction ipso facto void. Sixth. While the judge had the power to vacate the order of injunction for the reason that the proper practice had not been observed by the plaintiffs in the procurement of it, the judge was not without jurisdiction in granting it. Seventh. In every aspect of this case the judge had sufficient jurisdiction to grant an order of injunction in it, and consequently the injunction he granted was valid in law as long as it remained in force and the defendant had no right to disobey it. Eighth. The defendant failed to establish any excuse of which the law can take cognizance, and is guilty of a willful disobedience to the lawful mandate of this court in deliberately violating the order of injunction served upon him, and is guilty of a criminal contempt of this court. Ninth. Because the defendant acted by advice of counsel is not a legal reason why he should not be punished, but is only an extenuating circumstance to be considered in meting out punishment. Special Term, February, 1885. Roosevelt agt. Edson. MOTION to punish the defendant for contempt in disobeying an order of injunction granted in this action. Charles P. Miller, attorney and counsel, for plaintiffs. Sewell, Pierce & Sheldon, attorneys, and David Dudley Field and Robert Sewell, of counsel, for defendant. FREEDMAN, J.-This is an application on behalf of the plaintiffs that the defendant Franklin Edson be punished for a contempt of this court in willfully disobeying and violating an order of injunction heretofore granted in this action by the Hon. MILES BEACH, a judge of the court of common pleas for the city and county of New York, by which the said defendant, as mayor of the city of New York, was enjoined and restrained from appointing to, or nominating for, the office of commissioner of public works, or the office of counsel to the corporation, any person until the further order of this court. A copy of the said order of injunction, together with a copy of the bond or undertaking given by the plaintiffs on its procurement, and a copy of the summons in the action, accompanied by copies of the affidavits on which the order was granted, having been duly served on the defendant on the 30th day of December, 1884, no question arises as to the jurisdiction of the court over the person of the defendant, provided there was jurisdiction in other respects. Since the service thus made the question whether the injunction should be continued during the pendency of the action was elaborately argued before the Hon. CHARLES H. TRUAX, at a special term of this court, and that learned judge decided that the motion for the continuance of the injunction should be denied and that the preliminary injunction should be dissolved (Ante 205). This decision is no bar to the present application. During the existence of the injunction the defendant was bound to obey it, unless it was not merely voidable but absolutely void, for the reason that it was made without any jurisdiction whatChancellor WALWORTH, in The People agt. Spaulding ever. > Roosevelt agt. Edson. (2 Paige, 326), said: "While the injunction remained in force it was the duty of the vice-chancellor to punish every breach thereof; and in no case can a defendant be permitted to disobey an injunction regularly issued, whatever may be the final decision of the court upon the merits of the cause. If there is not sufficient equity upon the face of the bill to support the injunction the proper course for the defendant is to apply at once for a dissolution." A party, therefore, will be in contempt for breach of an injunction, if the officer allowing it had jurisdiction, notwithstanding that it was erroneously granted, and for an insufficient cause (Sullivan agt. Judah, 4 Paige, 444; Davis agt. The Mayor, &c., 1 Duer, 451; The People agt. Sturtevant, 9 N. Y., 263; The Erie Rail way Co. agt. Ramsey, 45 N. Y., 637; The People agt. Dwyer, 90 N. Y., 402). But although the decision referred to is no bar, the grounds upon which it was made are important elements to be considered. In making that decision judge TRUAX, in a carefully prepared opinion, reached, in substance, the following conclusions, viz.: 1. That in a proper action, brought by the proper party and upon sufficient facts properly presented, an injunction restraining the making of an illegal or corrupt appointment to a public office by the mayor of the city of New York may be issued. 2. That the facts presented by the affidavits in this case did not warrant an injunction restraining the mayor from making any appointment or nomination, but only an injunction restraining the appointment or nomination. and the confirmation by the board of aldermen of a particular individual, viz., Fitz-John Porter; and 3. That because the papers upon which the injunction was granted were unaccompanied by a complaint, and because the action was one in which the right to injunctive relief must appear from the complaint, the preliminary injunction which restrained the appointment or nomination of any person should be vacated entirely. The interests of an orderly administration of justice, as well |