Levy v. Rosenstein — 67 N.Y.S. 630

Majority

p. 630

LEVY et al. v. ROSENSTEIN et al.

(Supreme Court, Appellate Division, First Department.

December 21, 1900.)

Headnote

Appeal—Injunction—Refusal to Continue.

Where a temporary injunction against defendants was vacated on affidavits, and the cause was at issue in March, 1900,' and plaintiffs, instead of insisting on a trial on the merits of their right to an injunction, appealed from the order refusing to continue it, on the ground that the trial court abused its discretion, the order appealed from will not be reversed, unless a clear abuse of discretion is shown.

Appeal from special term, New York county.

Action by Sigismond Levy and others against Nathan Eosenstein and others. From an order denying a motion to continue a tempo vary injunction ( 66 N. Y. Supp. 101 ), plaintiffs appeal.

Affirmed.

Argued before VAN BRUNT, P. J., and RUMSEY, McLAUGHLIN, PATTERSON, and O’BRIEN, JJ.

Clarence J. Shearn, for appellants.

Vernon M. Davis, for respondents.

This case was put at issue on the 10th day of May, 1900, and the appellants, instead of trying the case that there might be a decision upon the absolute rights of the parties upon common-law evidence,' have contented themselves with a review of the «conclusions and of the discretion of the court below, exercised upon proof made by affidavits.

For the reasons given in the case of Davis against these same defendants, decided at this term ( 67 N. Y. Supp. 629 ), we have concluded that it is not necessary to review this discretion, and we accordingly affirm tMs order, xvith $10 costs and disbursements.