Spears v. . Mathews

66 N.Y. 127, 1876 N.Y. LEXIS 203

• Court: New York Court of Appeals
• Decided: April 28, 1876
• Status: Published

Opinion

Per Curiam.

The precise question involved in this appeal was decided adversely to the respondents by this court in Fellows v. Heermans (reported in 13 Abb. Pr. [N. S.], 1), where it was held that the court had no power to revive or continue a temporary injunction obtained by the plaintiff, after judgment against him in the action pending his appeal from the judgment.

The decision was made by a divided court, but a majority of the judges agreed to the judgment pronounced’ in that case, and the question here presented was considered and distinctly passed upon. The court were of the opinion that the Code defined and limited the power of the court in respect to granting injunctions, and that the right to an injunction in any ease, if it existed, was to be found in the provisions of the Code. This decision was referred to in Erie Railway Company v. Ramsey (45 N. Y., 637) as establishing this proposition. The question is, therefore, res adyudicata, and we do not deem it useful to restate the grounds upon which this court based its decision. It maybe that the power of the court to continue an injunction pending an appeal from an order or judgment dissolving it ought to exist, but this is a question for the legislature.

The order should be reversed.

All concur.

Order reversed.