Calkin v. Manhattan Oil Co.

Headnote

An order granting, denying, continuing or setting aside a preliminary injunction is not reviewable in this court, and the court will not entertain an appeal therefrom for the purpose of determining the right of plaintiff to maintain the action.

This was an appeal from an order of General Term reversing an order of Special Term, which vacated a preliminary injunction herein.

• This action was brought by plaintiff, as receiver of an insolvent steamship company, against defendants as creditors and stockholders of said company. A preliminary injunction was obtained, which, so far as relates to the creditors, defendant, restrained them from commencing any action or instituting or continuing any proceeding for the collection of their debts from the stockholders. The appellant was a judgment creditor. Both parties desired the appeal to be entertained for the purpose of determining the question whether the plaintiff, as receiver, could maintain the action. The appellant’s counsel claimed that in case he had not the right, the right to grant an inj unction pendente Ute did not rest in the

discretion of the court, but it had no power to grant it. The papers did not show whether the motion to set aside the injunction was granted on the ground that plaintiff could not ultimately recover, or because temporary interference was not advisable. Held, that the order was not reviewable, even if the case showed that the plaintiff could not maintain his action, in that the court had no authority to examine the merits for the purpose of determining that question; and that it was not proper to grant the request and thus to assume the functions of a court of original jurisdiction.