Kitty Kelly Shoe Corp. v. United Retail Employes of Newark, Local No. 108

8 A.2d 767, 126 N.J. Eq. 318, 1939 N.J. LEXIS 612, 5 L.R.R.M. (BNA) 933

• Court: Supreme Court of New Jersey
• Decided: October 26, 1939
• Status: Published

Opinion

Per Curiam.

The appeal is from an order of the court of chancery signed January 3d, 1939, restraining the defendant union, its general manager and seven former employes of the complainant corporation, pendente lite, from (a) picketing, (b) distributing a certain handbill, and (c) hindering or obstructing any person or persons seeking ingress or to make deliveries, all at the complainant’s place of business in the city of Newark. The bill prayed for preliminary and perpetual restraint.

The proofs consist of ex parte affidavits. That, because of the urgency of the need, frequently happens on an application for restraint pendente lite; but whatever the haste, the proofs for complainant must be clear and convincing and must substantially show the facts necessary to support the theory upon which the restraint is to rest. Where the denials fail in preciseness and particularity and do not carry conviction, and upon the entire showing from both sides it appears reasonably probable that the complainants had the right claimed, the injunction may issue. Evening Times Printing and Publishing Co. v. American Newspaper Guild, 124 N. J. Eq. 71. But the charges must also be precise and particular and must themselves carry conviction. Upon the entire showing we are left unconvinced of the reasonable probability of complainant’s contention. Consequently the restraint pendente lite should not, in our opinion, have issued. This in nowise prejudges the issues as they may be presented on the final hearing.

We conclude that the order allowing restraint pendente lite should be reversed, with costs to the defendants in this court, and the record remitted to the court below to be proceeded with accordingly.

For affirmance — None.

For reversal — The Chiee-Justice, Parker, Case, Bodine, Donges, Heher, Perskie, Porter, Heteield, Dear, Wells, WolesKeil, Raeeerty, Hague, JJ. 14.