Depeyster v. Graves

2 Johns. Ch. 148, 1816 N.Y. LEXIS 199, 1816 N.Y. Misc. LEXIS 20

• Court: New York Court of Chancery
• Decided: June 15, 1816
• Status: Published

Opinion

The Chancellor.

[ * 150 ]

The general rule is, that an injunction properly granted is not to be dissolved until the answer of all the defendants has come in. (Wyatt’s P. R. 234. But this rule has exceptions, and is subject to discretion and modification. If both the defendants were implicated in the same charge, I should require the answer of both, without some special reason to the contrary. If, however, the defendant on whom the real gravamen rested had fully answered the bill, this would probably be sufficient, and in many cases the injunction will be dissolved, as against the defendants who had answered. This was done in Joseph v. Doubleday; (1 Ves. & Beame, 497.) and in other cases, where the answer of all can and ought to come in, the injunction will be dissolved, if the plaintiff does not take the requisite steps, with all reasonable diligence, to expedite his cause, Here has been a delay of nine months, *since the answer of the three defendants who reside here, and who are suing at law as trustees for the creditors of the two defendants residing abroad, and they have denied all equity in the bill, as far as it rested in their knowledge or belief. The bill is not specially for a discovery, but for an account, and for the allowance of a set-off, which, if allowable at all, would seem to be equally so in the action at law. No steps have been taken in respect to the absent defendants, and no excuse offered for the neglect. There is a want of due diligence in the plaintiffs, since the obtaining of the injunction, and that is always a cause for dissolving it. (17 Vesey, 281.)

Injunction dissolved.