Strasser v. Moonelis — 13 N.Y. St. Rep. 890

Majority

p. 890

Adolph Strasser et al., Resp’ts, v. Adolph Moonelis, App’lt.^[1]

(Court of Appeals,

Filed March 6, 1888.)

Headnote

1. Appeal—Fbom obdeb granting temporary injunction—Court op APPEALS WELL NOT REVIEW.

The granting continuing or dissolving of a temporary injunction is within the discretion of the court of original jurisdiction, and its determination cannot be reviewed by the court of appeals.

U. Same—Exception.

This rule has an exception, when it so clearly appears from the complaint that the plaintiff cannot, in any point of view, be entitled to the final relief of injunction as demanded therein, that the temporary injunction was unauthorized, the court of appeals will review an injunction pendente lite. Citing McHenry v. Jewett, 90 3ST. Y., 60.

Lewis Johnston, for app’lt; Antonio Kncmth, for resp’ts.

The defendant appeals from an order of the general term of the superior court of New York, affirming an order of the special term enjoining the defendant from attaching to or using certain labels, or imitations thereof, upon boxes containing cigars manufactured and sold by him.

The order was granted upon the pleadings and affidavits presenting a controverted state of facts, and, so far as the question depends upon such facts, we must assume that the court below proceeded upon the theory that the plaintiff’s version was correct. Upon this assumption it is quite clear that the order was discretionary and not appealable to this court.

We have repeatedly held that .the granting, continuing or dissolving of a temporary injunction is within the discretion of the court of original jurisdiction, and that its determination cannot be reviewed here. Pfohl v. Sampson, 59 N. Y., 176 ; Brown v. Cheese Association, id., 242 ; Van De Water v. Kelsey, 1 id., 533; Paul v. Munger, 47 id., 469; People v. Schoonmaker, 50 id., 499.

In the case, however, of McHenry v. Jewett ( 90 N. Y., 60 ) this rule was so far departed from that it was held that

p. 891

when it clearly appeared from the complaint that the plaintiff could not, in any point of view, be entitled to the final relief of injunction as demanded therein, that a temporary injunction was unauthorized, and this court would in that case review an order for an injunction pendente lite. With this single exception the decisions in this court have been uniform to the effect that it will not review orders of this character.

We have examined with some care the complaint in this action, and are not prepared to say, as matter of law, that a case may not be proved under its, allegations entitling plaintiffs to some portion of the relief sought. A material fact bearing upon the right of the plaintiffs to final relief appears to be the force and effect to be ascribed to the allegation that the plaintiffs are “cigar makers,” and whether that phrase imports an ownership of the cigars thus made or permits the inference that they are never such owners. The implied allegation of ownership is controverted in the answer by a denial of any proprietary interest by the plaintiffs in the cigars thus made, and an allegation that the pecuniary interests of the plaintiffs are not affected by the use or non-use of the labels m question.

The issue thus made presents a serious question of law as to the right of the plaintiff, and we are not prepared to determine it in this preliminary proceeding, ana in the absence of findings of fact showing the particular grounds upon which the judgment is based. Selchow v. Baker, 93 N. Y., 59 , 61.

We think this case comes within the general rule relating to the appealability of orders granting preliminary in • junctions, and it should, therefore, be dismissed.

Appeal dismissed.

All concur.