Kelly v. Jeroloman

7 Rob. 158

• Court: The Superior Court of New York City
• Decided: November 15, 1867
• Status: Published

Opinion

Barbour, J.

As the plaintiffs have already obtained an order enjoining the defendant until the further order of ihe court, I see no necessity for an additional order to the same effect.' The order already made will continue in force until the final determination of the action, unless the defendant shall obtain another dissolving it, and the order already made by the justice at chambers is quite as effective without, as it would be with, the ratification thereof by another judge sitting at special term, to say nothing of the indelicacy of such an unnecessary proceeding.

35Tor, on the other hand, am I able to perceive how the court can relieve the defendant upon this motion from the restriction placed upon him by the order which has been made; inasmuch as it cannot, properly, be set aside, vacated or modified, except upon his motion, on notice, or an order directing the plaintiffs to show cause why the same should not be vacated or modified.

It is not like the case provided for in the 223d section of the Code, where,- in case the judge shall deem it proper that the defendant be heard before granting the injunction, he may make an order requiring cause to be shown why such injunction should not be granted, and may, in the meantime, restrain the defendants; for, here, the injunction order, and all the order, it must be assumed, that the ■plaintiffs were entitled to, has already been granted.

The motion must be denied, but without costs, as none of these objections, which are jurisdictional, were taken by the counsel at the hearing.