Childs v. Fox — 25 N.Y. Super. Ct. 650

Majority

p. 650

Casper C. Childs, receiver, &c. plaintiff and respondent, vs. George Fox et al. defendants and appellants.

Headnote

On the hearing of an order to show cause why a preliminary injunction should not be continued, the plaintiff was allowed by new affidavits to support his complaint a&d explain affidavits réad by the defendants denying the facts set ' forth in the papers on which such injunction was granted. Seld that this was an exercise o.f discretion on the part of the justice at chambers, over which the general term has no control, and which it could not review,

(Before Moncrief, Barbour and Garvin, JJ.)

Heard March, 1864.

Appeal from an order made by a justice at chambers, conT tinning a preliminary injunction,

p. 651

J. F. Walton, for the appellants.

B. T. Kissam, for the respondents.

By the Court,

The defendants, on the hearing in this action, read several affidavits denying the facts set forth in the plaintiff’s complaint and the affidavit on the part of the plaintiff; whereupon the plaintiff, on application to the court, was allowed to read affidavits, explaining the affidavits on the part of the defendants and in support of his complaint. This was an exercise of discretion on the part of the justice at chambers, over which we have no control, and cannot review. Rad time been asked by the defendants to answer the new and additional affidavits, it would doubtless have been accorded to them, so that no harm could have resulted to the defendants. Besides, § 220 of the Code, provides that upon its appearing satisfactorily to .the court or judge by the .affidavit .of the plaintiff, or any other person, that sufficient grounds exist therefor, the injunction may be -granted. The affidavit accompanying the complaint is very positive, and details the facts with much care and particularity, and it may very well be that the justice who heard the motion was abundantly satisfied upon that affidavit alone, that satisfactory cause existed, and was made out by it, for continuing the preliminary injunction. That was1 a question on the facts for him to decide. Entertaining these views, I am of opinion -the order made at chambers should be affirmed, with costs.

(dissenting.) The order appealed from was made upon the return of another order, founded upon the complaint in the action and one affidavit, temporarily'restraining the defendants from disposing of the property which is the subject matter of the action, and requiring them to show cause ■ why such injunction should not be continued.

At the hearing before the judge, the complaint and affidavit mentioned in the order to show cause were read by the plaintiff’s counsel. All the material allegations contained in the com

Dissent

p. 652

plaint, having reference to the proposed injunction, were stated therein to be made upon information and belief, and, therefore, furnished no evidence upon, which to base an order. The affidavit, however, not only stated, positively, that the defendant, William C. Lyons, purchased from Gr. & B. Fox, and in part paid for, and was the owner of the property, but averred that William H. Lyons did not purchase the same, and was not the owner thereof. The affidavits of all the four defendants were then read by their counsel. These denied, fully and unequivocally, that William C. Lyons purchased, or partially paid for, or owned, the property, and as positively alleged that William H. Lyons bought and owned the same. It may further be said, in this connection, that the person who made the affidavit used by the plaintiff does not appear to have been in any manner connected with the transactions sworn to by him, and does not state how he obtained his knowledge of the matters stated by him, nor even that-he has any knowledge, from circumstances or otherwise, that the material facts testified to by him were true; while, on the other hand, the persons who made the other affiavits were, themselves, parties to the transactions of which they speak. If the case had rested there, therefore, there can be no doubt the motion of the plaintiff ought to have been refused. But, upon the application of the plaintiff’s counsel, he was then permitted by the justice to read nine affidavits, for the purpose, evidently, of supporting ihe statements contained in the affidavit first read, and not, so far as I can discover, to contradict or disprove any new matter, of importance, set up in the affidavits read by the defendants, or, if any, but little.

I think those additional affidavits were improperly received. Where new matter is set up in the affidavits read in opposition to a motion, in cases of this description, the party making the motion may, in the sound discretion of the judge before whom it is made, be permitted to produce affidavits in reply to such new matter. (Florence v. Bates, 2 Code R. 110.) But it would be dangerous, as well as, in many cases, manifestly unjust, to permit a party opposing a motion to read affidavits

p. 653

in addition to, those upon which his motion has been made, merely for the purpose of strengthening the case he has already made by his moving papers, and not to contradict or disprove new matter presented in the affidavits of his opponent. Indeed, it is difficult to imagine a case in which such admission would operate more oppressively upon the party against whom such additional papers were used than the one now under consideration. For the defendants, it may well be assumed, went before the judge fully prepared, as they supposed, and as I think they were, to defeat the motion on the case made by the papers with which they had been served, and, after disproving the allegations they had been called upon to answer, were met by a new series of affidavits which they had never seen, and to which they had had no opportunity to reply; although, for aught I can discover, the additional affidavits might have been obtained by the plaintiff and served upon his opponents long before the hearing of the motion.

I am of opinion, therefore, that the order should be set aside and vacated, with costs.

Order affirmed.