Townsend v. Tanner

3 How. Pr. 384, 1848 N.Y. Misc. LEXIS 26

• Court: New York Supreme Court
• Decided: December 11, 1848
• Status: Published

Opinion

Barculo, Justice.

-The Plaintiff’s counsel is mistaken in supposing that this case comes within the 192d section of the code. It does not come within the first clause, because no part of the relief demanded “ consists in restraining the commission,” of the trespass: nor, within the last clause, because the continuance of the trespass cannot tend to render the judgment ineffectual. The former refers to cases where the final judgment may include a perpetual injunction restraining the Defendant; and t he latter applies to actions brought to recover or preserve a specific thing, the destruction of which by the Defendant, during the litigation, would defeat the object thereof. In this case the Plaintiff can, under the pleadings, only recover a sum of money, by way of damages; and the injunction, if retained until the trial, would, of course, be vacated the moment judgment is given, although in favor of the Plaintiff. Injunction dissolved.