Oertel v. Wood

40 How. Pr. 10

• Court: New York Supreme Court
• Decided: January 15, 1870
• Status: Published

Opinion

Cardozo, J.

This case cannot be distinguished in principle from the cases of Prince Albert agt. Strange, (2 De G. & Sm., 652,) and Turner agt. Robinson, (10 Ir. Ch., 510.) Perhaps the injunction is too broad, but that can be remedied. The motion to dissolve must be denied.

Ordinarily the question like that presented here, should not be passed upon on a motion to overrule a demurrer as frivolous, but when it has been fully argued, it may as well be disposed of on the merits as not, especially when those merits are really involved in the motion to dissolve the injunction.

The motion of the plaintiffs for judgment, is therefore, granted.