Gray v. Yellowley

E.D. New York

Gray v. Yellowley

290 F. 400, 1923 U.S. Dist. LEXIS 1523

DecidedMarch 14, 1923

StatusPublished

This text of 290 F. 400 (Gray v. Yellowley) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gray v. Yellowley, 290 F. 400, 1923 U.S. Dist. LEXIS 1523 (E.D.N.Y. 1923).

Pincite

Opinion

CAMPBELL, District Judge.

The complainant, who was a retail druggist, has commenced an action in equity, in pursuance of sections 5 and 9 of the National Prohibition Law (41 Stat. 309), to review the action of the prohibition officials in revoking his pentiit, the order of revocation being dated February 5, 1923, and now seeks on this motion an injunction pendente lite to restrain the .defendants from carrying out such order.

It appears that the defendants claim that a very large number of the prescriptions upon which intoxicating liquor was dispensed by the complainant during the year preceding the date of cancellation of the permit were on forged and counterfeit prescription blanks, and that the complainant had not exercised due diligence to ascertain their authenticity. The complainant contends that the citation, on which the hearing before the prohibition agent in charge of revocation proceedings was had, was insufficient.

[1] A motion to dismiss on this ground was made before the agent, and denied, and I do not think that that in itself justifies the relief asked for on this motion, because, without deciding the question raised, it would seem to me that, the complainant having proceeded with that [402]*402hearing, it should be held that the notice was sufficient. People v. Bogart, 122 App. Div. 872, 107 N. Y. Supp. 831.

[2] In any event, the question here presented is one of law and fact, as the defendants by their answer have denied the material allegations of the bill of complaint, and therefore under the decisions an injunction pendente lite should not be granted.

[3] In addition, however, to the reasons heretofore assigned, it seems to me that the charges made, as to which testimony was taken before the prohibition agent, are such that relief should not’be granted during the pendency of the action, which would be as great as the complainant would obtain if successful on a trial, especially when it is not shown that the officers charged with the enforcement of the law were acting in bad faith.

The complainant devoted much of his argument to the question of whether it could be said that he acted in bad faith. If that question is to be determined, it should be on the trial of the action, and not on a motion for an injunction pendente lite. But it may be said, in passing, that the number of prescriptions as to which the defendants object is sufficiently large to present a serious question as to the care and good faith exercised and shown by the complainant.

I therefore conclude that the injunction asked for should not be granted.

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CAMPBELL, District Judge.

The complainant, who was a retail druggist, has commenced an action in equity, in pursuance of sections 5 and 9 of the National Prohibition Law (41 Stat. 309), to review the action of the prohibition officials in revoking his pentiit, the order of revocation being dated February 5, 1923, and now seeks on this motion an injunction pendente lite to restrain the .defendants from carrying out such order.

It appears that the defendants claim that a very large number of the prescriptions upon which intoxicating liquor was dispensed by the complainant during the year preceding the date of cancellation of the permit were on forged and counterfeit prescription blanks, and that the complainant had not exercised due diligence to ascertain their authenticity. The complainant contends that the citation, on which the hearing before the prohibition agent in charge of revocation proceedings was had, was insufficient.

[1] A motion to dismiss on this ground was made before the agent, and denied, and I do not think that that in itself justifies the relief asked for on this motion, because, without deciding the question raised, it would seem to me that, the complainant having proceeded with that [402]*402hearing, it should be held that the notice was sufficient. People v. Bogart, 122 App. Div. 872, 107 N. Y. Supp. 831.

[2] In any event, the question here presented is one of law and fact, as the defendants by their answer have denied the material allegations of the bill of complaint, and therefore under the decisions an injunction pendente lite should not be granted.

[3] In addition, however, to the reasons heretofore assigned, it seems to me that the charges made, as to which testimony was taken before the prohibition agent, are such that relief should not’be granted during the pendency of the action, which would be as great as the complainant would obtain if successful on a trial, especially when it is not shown that the officers charged with the enforcement of the law were acting in bad faith.

The complainant devoted much of his argument to the question of whether it could be said that he acted in bad faith. If that question is to be determined, it should be on the trial of the action, and not on a motion for an injunction pendente lite. But it may be said, in passing, that the number of prescriptions as to which the defendants object is sufficiently large to present a serious question as to the care and good faith exercised and shown by the complainant.

I therefore conclude that the injunction asked for should not be granted.

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Bluebook (online)

290 F. 400, 1923 U.S. Dist. LEXIS 1523, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gray-v-yellowley-nyed-1923.

Opinion

I therefore conclude that the injunction asked for should not be granted.

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