Giordano v. Dellwood Dairy Co.

New York Supreme Court

Giordano v. Dellwood Dairy Co.

153 Misc. 54, 275 N.Y.S. 193, 1934 N.Y. Misc. LEXIS 1778

CourtNew York Supreme Court

DecidedAugust 21, 1934

StatusPublished

Cited by5 cases

This text of 153 Misc. 54 (Giordano v. Dellwood Dairy Co.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Giordano v. Dellwood Dairy Co., 153 Misc. 54, 275 N.Y.S. 193, 1934 N.Y. Misc. LEXIS 1778 (N.Y. Super. Ct. 1934).

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Opinion

Taylor (George H.), J.

Careful study of the voluminous affidavits and of the excellent brief submitted convinces me that it would be an improper exercise of. the court’s discretion (Civ. Prac. Act, § 882) to grant, at plaintiffs' instance, an injunction pendente lite in this case for the following reasons, among others which might be given:

(1) The granting of the application would give to the plaintiffs now all the relief which would be accorded to them if successful at the trial characterized by the important incidents of direct and cross-examination; and to grant it would not be proper in view of the defendant’s denial under oath of the plaintiffs’ claimed equities and of the substantial dispute presented as to plaintiffs’ right to any injunction, temporary or final. (See Maloney v. Katzenstein, 135 App. Div. 224, 225, 226; Newgold v. Childs Co., 148 id. 153; Lakes Island Realty Co. v. McDermott, 96 Misc. 37; Byrnes v. Kaufwein Realty Co., Inc., 206 App. Div. 306; McGuire v. Blumingdale, 8 Misc. 478.)

[55]*55(2) The award to plaintiffs of the desired and drastic relief asked upon the motion would bear more heavily on the defendant with its considerable investment and business which has been conducted for many years, than would the denial of the injunction upon the plaintiffs, (Maloney v. Katsenstein, supra, 226; Byrnes v. Kaufwein Realty Co., Inc., supra, 308; Lakes Island Realty Co. v. McDermott, supra, 41; McGuire v. Blumingdale, supra, 478.)

(3) Plaintiffs’ alleged grievances have existed for such a lengthy period before the commencement of the action that immediate relief to the plaintiffs is not requisite. (See Byrnes v. Kaufwein Realty Co., Inc., supra, 308; McGuire v. Blumingdale, supra, 479.) (Examine, also, Metzger v. Knox, 77 Misc. 271; affd., 153 App. Div. 911.)

Other considerations undoubtedly militate against the granting of the motion, but those stated will suffice. In connection with the preparation of the issues for trial please read my memorandum in Demuro v. Hvranek (153 Misc. 187),

No intimation as to the merits of the controversy herein is implicit in this memorandum. That controversy will be decided after the more searching processes of a trial of the issues.

Plaintiffs’ motion for injunction pendente lite is denied, but without costs. Settle order on notice.

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Taylor (George H.), J.

Careful study of the voluminous affidavits and of the excellent brief submitted convinces me that it would be an improper exercise of. the court’s discretion (Civ. Prac. Act, § 882) to grant, at plaintiffs' instance, an injunction pendente lite in this case for the following reasons, among others which might be given:

(1) The granting of the application would give to the plaintiffs now all the relief which would be accorded to them if successful at the trial characterized by the important incidents of direct and cross-examination; and to grant it would not be proper in view of the defendant’s denial under oath of the plaintiffs’ claimed equities and of the substantial dispute presented as to plaintiffs’ right to any injunction, temporary or final. (See Maloney v. Katzenstein, 135 App. Div. 224, 225, 226; Newgold v. Childs Co., 148 id. 153; Lakes Island Realty Co. v. McDermott, 96 Misc. 37; Byrnes v. Kaufwein Realty Co., Inc., 206 App. Div. 306; McGuire v. Blumingdale, 8 Misc. 478.)

[55]*55(2) The award to plaintiffs of the desired and drastic relief asked upon the motion would bear more heavily on the defendant with its considerable investment and business which has been conducted for many years, than would the denial of the injunction upon the plaintiffs, (Maloney v. Katsenstein, supra, 226; Byrnes v. Kaufwein Realty Co., Inc., supra, 308; Lakes Island Realty Co. v. McDermott, supra, 41; McGuire v. Blumingdale, supra, 478.)

(3) Plaintiffs’ alleged grievances have existed for such a lengthy period before the commencement of the action that immediate relief to the plaintiffs is not requisite. (See Byrnes v. Kaufwein Realty Co., Inc., supra, 308; McGuire v. Blumingdale, supra, 479.) (Examine, also, Metzger v. Knox, 77 Misc. 271; affd., 153 App. Div. 911.)

Other considerations undoubtedly militate against the granting of the motion, but those stated will suffice. In connection with the preparation of the issues for trial please read my memorandum in Demuro v. Hvranek (153 Misc. 187),

No intimation as to the merits of the controversy herein is implicit in this memorandum. That controversy will be decided after the more searching processes of a trial of the issues.

Plaintiffs’ motion for injunction pendente lite is denied, but without costs. Settle order on notice.

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153 Misc. 54, 275 N.Y.S. 193, 1934 N.Y. Misc. LEXIS 1778, Counsel Stack Legal Research, https://law.counselstack.com/opinion/giordano-v-dellwood-dairy-co-nysupct-1934.

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