Van Orden v. Ledwith — 44 A.D. 580

Majority

p. 580

Peter S. Van Orden, Appellant, v. Mary Ledwith and Others, Respondents.

Headnote

Injunction — the discretion of the Special Term, not ordinarily interfered wifh — distribution of a fund sought to be charged with funeral expenses, when not stayed.

The continuance of a temporary injunction, aside from the conditions' precedent mentioned in sections 603 and 604 of the Code of Civil Procedure, rests in the sound discretion of the Special Term, and the Appellate Division will not ordinarily interfere with the exercise of such discretion.

In an action by an .undertaker to secure a judgment declaring the amount of his compensation for conducting certain funerals to be an equitable lien upon a fund in the hands of a trust company, the Special Term may properly refuse to continue a temporary injunction restraining the distribution of the fund where the complaint is based almost entirely upon information and belief and - there are no specific allegations of fraud nor any proof that the defendant is insolvent nor any reason to suppose that, a judgment rendered in the action ■could, not be enforced.

Appeal by the plaintiff, Peter S. Van Orden, from an order of the Supreme Court, made at the Kings County Special Term and entered in- the office of the clerk of the county of Rockland on the 26th day of July, 1899, denying his motion to continue- a temporary injunction and vacating the same.

The action was brought to secure a judgment declaring that the amount of the reasonable compensation of the plaintiff (an undertaker) for conducting the burial of James Ledwith and his daughter, Anne Claffey, is an equitable lien upon, and preferential claim against, a certain fund in the possession of the defendant, the Kings County Trust Company, and payable thereout, and also for further relief.

As the- fund was about to be distributed, a temporary stay was obtained, which was thereafter vacated, and from the order vacating such stay this appeal is taken.

p. 581

David P. Hall, for the appellant.

Thomas P. Magner, for the respondents.

The granting of an injunction order under the provisions of sections 603 and 604 of the Code of Civil Procedure depends, aside from the conditions precedent therein mentioned, upon the sound discretion of the court. The language of the statute is that “ an injunction order may be granted.” It is equally within the discretion of the court to continue or to refuse to continue such an order; and, in the absence of facts tending to establish that the court has abused this discretionary power, it would be ordinarily unwise for this court to intei-pose its discretion for that of the trial court, although this court may properly exercise an independent discretion in a proper case. The verified complaint in the action is based almost entirely upon information and belief; there are no specific allegations of fraud, nor is it shown that the defendant is insolvent, or that there is any good reason to suppose that a j'udgment rendered in the action may not- be enforced. Under these circumstances it was proper for the trial court to refuse to interfere with the orderly administration of the estate of defendants’ intestate, and we conclude that the order appealed from should be affirmed.

The order appealed from should be affirmed, with costs.

All concur, except Goodrich, P.. J., absent.

Order affirmed, with ten dollars costs and disbursements.