Childs v. Fox

18 Abb. Pr. 112, 2 Rob. 650

• Court: The Superior Court of New York City
• Decided: March 15, 1864
• Status: Published

Opinions

By the Court. —Garvin, J.

The defendants, on the hearing in this action, read several affidavits denying the facts set forth in the plaintiff’s complaint and the affidavits on the part of the plaintiff, whereupon the plaintiff, upon application to the court, was allowed to read affidavits explaining the affidavits on the part of the defendants, and in support of his complaint. This was an exercise of discretion on the part of the Justice at Chambers, over which we have no control, and cannot review. Had time been asked by the defendants to answer the new and additional affidavits, it would, doubtless, have been accorded to them, so that no harm could have Resulted to the defendants. Besides, section 220 of the Code provides, that, upon its appearing satisfactorily to the court or judge", by the affidavits of the plaintiff or any other person, that sufficient ground exists therefor, the injunction may be granted. The affidavit accompanying the complaint is very positive, and details the facts with much care and particularity, and it may very well be, that the Justice who heard the motion was abundantly satisfied on that affidavit alone, that satisfactory cause existed, and was made out by it, for continuing the preliminary injunction. That was a question on the facts for him to decide. '

Entertaining these views, I am of opinion the order made at Chambers should be affirmed with costs.

Moncrief, J.—I concur.