Barclay v. Moloney

44 A.D. 632, 60 N.Y.S. 403

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 15, 1899
• Status: Published

Opinion

Per Curiam :

With regard to the order to show cause, we agree with the respondent that no special reason is stated in the affidavit for. a notice of motion of less t than eight days, and with the judge below that the plaintiff was protected by the temporary injunction and could afford to wait eight days for the hearing of his motion. These are all valid objections to that part of the order which required the defendant to show cause in less than eight days why the injunction should not be continued, and the learned judge at Special Term was justified in setting so much of the order aside. The justice went further, however, and vacated the injunction itself, which was entirely separate and distinct from the other provisions alluded to. As the papers warranted the granting of an injunction in the first instance, it should stand until, on proper notice, it- is either continued or vacated. The.order is accordingly modified, by dismissing the order to; show cause and reinstating the injunction, and as modified affirmed. without costs to either party. Present-—Van Brunt, P. J., Rumsey, Patterson, O’Brien and Ingraham, JJ.