Erie Railway Co. v. Ramsey

57 Barb. 449, 1870 N.Y. App. Div. LEXIS 55

• Court: New York Supreme Court
• Decided: September 5, 1870
• Status: Published

Opinion

By the Gourt, Cardozo, J.

It is perfectly settled that an injunction will not issue to restrain the prosecution of an action pending in the court, unless it appears from special circumstances that relief cannot be had by motion or petition in the cause. That'was decided in Schell v. The Erie Railway Company, (51 Barb. 368.) And it may be proper to add, as that case, in consequence, perhaps, of some unnecessary and probably inaccurate expressions in the prevailing opinion, seems to have been misunderstood, that is all that it was intended by the court to decide there, viz., that such an injunction is irregular. (See also Dyckman v. Kernochan, 2 Paige Ch. 26.) The defendants can yet move to dissolve the injunction in the original suit if they desire. The order below, must be reversed.

[First Department, General Term, September 5, 1870.

In respect to the appeal from the order refusing to entertain the second motion to dissolve the injunction, because leave to make it had not been previously obtained, it is enough to say that when a second "motion.is based upon a new state of facts arising since the first decision was made, it is not necessaiy that leave to make the motion should be obtained. It may be made as a matter of right. The whole practice upon this subject is fully reviewed, and the authorities cited, in Belmont v. The Erie Railroad Company, (52 Barl. 637.)

That order should also therefore be reversed.

Orders appealed from reversed.

Ingraham, P. J., and Cardoza, Justice.]