Kelly v. Jeroloman — 30 N.Y. Super. Ct. 158

Majority

p. 158

Dora Kelly and James Kelly, plaintiffs, vs. John P. Jeroloman, defendant.

Headnote

1. When an order absolutely enjoins a defendant to refrain from doing certain acts, until the further order of the court, although it also requires him to . show cause, at special term, why such injunction should not be continued until the final determination of the action, there is no necessity for making an additional order to continue the injunction.

2. Upon hearing such motion merely to continue the injunction, the court cannot relieve the defendant from the restriction placed upon him by the previous order; which can only be'done upon an original motion by him, made on notice, or an order directing the plaintiffs to show cause why the same should not be vacated or modified.

(Before Barbour, J. at special term,

November —, 1867.)

p. 159

This is a motion by the plaintiff, to continue an injunction. It is based upon an order of a judge enjoining the defendant to refrain from collecting or attempting to collect from the plaintiffs certain rents, or from taking any proceedings to dispossess or remove such plaintiffs from certain premises, until the further order of the court; and also requiring the defendant to show cause, at special term, why the said injunction should not be continued until the final determination of the action.

Gleason & Babcock, for the plaintiffs.

Charles N. Black, for the defendant.

As the plaintiffs have already obtained an order enjoining the defendant until the further order of ihe court, I see no necessity for an additional order to the same effect.' The order already made will continue in force until the final determination of the action, unless the defendant shall obtain another dissolving it, and the order already made by the justice at chambers is quite as effective without, as it would be with, the ratification thereof by another judge sitting at special term, to say nothing of the indelicacy of such an unnecessary proceeding.

35Tor, on the other hand, am I able to perceive how the court can relieve the defendant upon this motion from the restriction placed upon him by the order which has been made; inasmuch as it cannot, properly, be set aside, vacated or modified, except upon his motion, on notice, or an order directing the plaintiffs to show cause why the same should not be vacated or modified.

It is not like the case provided for in the 223d section of the Code, where,- in case the judge shall deem it proper that the defendant be heard before granting the injunction,

p. 160

he may make an order requiring cause to be shown why such injunction should not be granted, and may, in the meantime, restrain the defendants; for, here, the injunction order, and all the order, it must be assumed, that the ■plaintiffs were entitled to, has already been granted.

The motion must be denied, but without costs, as none of these objections, which are jurisdictional, were taken by the counsel at the hearing.