Smallwood v. Schwietering

66 N.Y. St. Rep. 875

• Court: The Superior Court of New York City
• Decided: May 6, 1895
• Status: Published

Opinion

Freedman, J.

Upon the facts as they appeared upon the trial of the issues the plaintiff’s complaint was properly dismissed upon the grounds set forth by the learned trial judge, in the decision filed by him. Even if all others were open to some criticism, the last ground assigned, namely, that the contract upon which the plaintiffs rest their claim had been terminated before the trial, is quite conclusive. One who invokes equitable relief, and demands a prevent, ive remedy, becomes subject to the practice of courts of equity, where such relief only is administered as the nature of the case and the facts as they exist at the close of the litigation demand. Peck v. Goodberlett, 109 N. Y. 181. The record discloses no exception which calls for reversal. The complaint having been properly dismissed, no error was committed in denying plaintiff’s motion for injunctive relief or the appointment of a receiver during their appeal. The judgment and order appealed from should be severally affirmed, with costs. On the appeal from the order, $10 costs and disbursements may be taxed.