Corscadden v. Haswell — 84 N.Y.S. 603

Majority

p. 603

CORSCADDEN v. HASWELL et al., Commissioners.

(Supreme Court, Appellate Division, Third Department.

November 17, 1903.)

Headnote

1. Injunction—Continuance Until Final Judgment—Necessity—Appeal— Harmless Error.

An order continuing a temporary injunction until final judgment entered at the same time as the entry of an interlocutory judgment containing the same injunction, but which authorized defendants to withdraw their demurrer and answer, was, even if unnecessary, harmless.

Appeal from Special Term, Albany County.

Action by John E. Corscadden against Isaac M. Haswell and others, as commissioners of the Albany penitentiary,' and another. From an order continuing a temporary injunction, and from an order denying a resettlement of said order, defendants appeal. Order of continuance affirmed. Order refusing a resettlement reversed, and injunction modified.

Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.

J. S. Frost (J. Newton Fiero, of counsel), for appellants.

Countryman & Du Bois, for respondent.

Upon the opinion in the appeal from the judgment in this case, the order should be modified in the same way as the judgment was therein directed to be modified. The objection made by the defendants to the order continuing the injunction seems to be that as the injunction was included in the interlocutory judgment at that time entered there was no occasion for an order continuing the injunction. The interlocutory judgment authorized the defendants to withdraw their demurrer and answer, and while it contained the injunction clause, the same as provided in effect in the order appealed from, some question might arise as to whether, if the demurrer had been withdrawn and an answer interposed, the interlocutory judgment would not become ineffective, and the injunction therein provided for fail. In any event, the continuance of the temporary in-' junction was provided for simply until the final judgment in the case, and, even if unnecessary by reason of the injunction contained in the interlocutory judgment, it could harm nothing, and should not be reversed. The order, therefore, continuing the injunction should be affirmed, and the order refusing to modify the same should be reversed, and the injunction modified as specified in the opinion, upon the appeal from the judgment. No costs allowed to either party. All concur.