Hunt v. Stirone

232 A.D. 262, 249 N.Y.S. 591, 1931 N.Y. App. Div. LEXIS 13784

Opinions

O'Malley, J.

The record before us contains but two orders. One is an ex parte order, which, according to its recitals, was made upon a complaint and the joint affidavits of three individuals. Other recitals are to the effect that the papers mentioned have made it appear to the satisfaction of the court that the defendants are engaged in certain unlawful acts affecting the plaintiffs. The order directs the defendants to show cause on January 23, 1931, why an injunction pendente lite should not issue, and until the hearing and determination of the order to show cause, the defendants are enjoined in specified particulars.

The other is the order appealed from and is dated January 24, 1931. Its recitals refer to the order to show cause and its restraining provisions, and it further recites that on the return day of said order to show cause the defendants appeared specially by counsel, who in open court moved to vacate so much of the order to show cause as enjoined and restrained the defendants for the reason and upon the ground that the said order was made in violation of section 882 of the Civil Practice Act, as amended by chapter 378 of the Laws of 1930,

* in that no notice of the application for the injunctive relief therein contained was given to the defendants as required by said section as amended.

The order further recites that after hearing counsel for “ the defendant ” in support of the motion “ and objection as aforesaid,” and the attorney for the plaintiffs in opposition, and on reading and filing the order to show cause, it is ordered “ that the preliminary objection raised by the defendant to the hearing of said motion for injunction pendente lite and the application and the motion of the defendant to vacate the order * * *, in so far as the said order enjoined and restrained the defendant from the acts set out in said order to show cause be, and the same are hereby overruled and denied.”

Although no brief is submitted on behalf of the respondents, we are of opinion that in view of the state of the record there is no question before us for determination. In the points submitted on behalf of the appellants, reversal is sought upon the ground that the order to show cause which contained the injunction pendente lite was granted without notice in violation of the provisions of the section of the Civil Practice Act heretofore mentioned. However, there is nothing before us to show whether notice was or was not given. A judicial act of the nature here sought to be reviewed must be presumed to be proper until the contrary is shown.

Assuming, however, that the record justified an inference that notice in the first instance was not given, the defendants clearly had notice on the return day of the order to show cause. Nothing is contained in the record to show that the motion brought on was not proceeded with and a disposition made. This being so, it would seem to be futile to remit the matter for further hearing and disposition.

It follows that the order so far as appealed from should be affirmed, with ten dollars costs and disbursements.

McAvoy and Mabtin, JJ., concur; Finch, P. J., and Mebbell, J., dissept.

Since amd.. by Laws of 1931, chap. 387.-—■ [Rep.