New York Printing & Dying Establishment v. Fitch

1 Paige Ch. 97

• Court: New York Court of Chancery
• Decided: June 5, 1830
• Status: Published

Opinion

The Chancellor :—Where a motion is made to dissolve the injunction on the matter of the bill only, agreeably to the 75th rule of this court, the case must be viewed in the same manner as if it were an original application for the injunction, and opposed by the defendants’ counsel. If the complainants were now asking for this preliminary injunction, is this a case in which it would be proper for this court to grant their application? There are many cases in which the complainant may be entitled to a perpetual injunction on the hearing, where it would be manifestly improper to grant an injunction in limine. The final injunction is in many cases matter of strict right, and granted as a necessary consequence of the decree made in the cause. On the contrary, the preliminary injunction before answer, is a matter resting altogether in the discretion of the court, and ought not to be granted unless the injury is pressing and the delay dangerous.

[1] (Ogden v. Kip, 6 John. Ch. R. 60.) The case of Waters v. Taylor, (2 Ves. & Beame, 299,) relied upon by the complainants’ counsel for the purpose of showing that an injunction will be granted to prevent a multiplicity of suits at *law, was a decision upon the hearing, and in a case of partnership.

Whether the facts stated by the-'counsel on the argument, in relation to the controversy in this cause, would be sufficient to sustain the jurisdiction of this court, on the principle of quieting them in the enjoyment of their property, and preventing the necessity of a perpetual litigation, it is not necessary to decide at this time.

It is sufficient for the decision of the question immediately before the court, that it does not appear that any serious damage or irreparable injury will take place, if the defendants continue to run their boat and land their passengers, as they have heretofore done, until the complainants’ rights are admitted by the answer, or settled on the hearing. On the other hand, I can readily see that retaining the preliminary injunction may produce great injury to the defendants, and for which they would be entirely without remedy, if it should finally appear that they were only in the exercise of their legal rights.

The case of Livingston v. Livingston, (6 Johns. Ch. Rep. 497,) and the several cases there referred to, settle the principle that an injunction will lie to restrain trespasses, even where there is a legal remedy for the intrusion; but there must be something particular in the case, to sustain the jurisdiction of the court so as to bring the injury under the head of quieting the possession, or to make out a case of irreparable mischief; or the value of the inheritance must be put. in jeopardy by the continuance of the trespass.

The case made by the complainants’ bill, is not sufficient to justify the court in granting or retaining the preliminary injunction before answer, and it must therefore be dissolved.

Ploomfield v. Snowden, 2 Paige, 355; City of Rochester v. Curtiss, 1 Clarke, 336; Arthur v. Case, post, 447; Pitley v. Eastern Counties Railway, 8 Sim. 483; New York Printing Company v. Fitch, 4 Paige, 127. See further, Am. Ch. Dig. by Waterman, tit. Injunction.