Health Department v. O'Reilly

Headnote

Injunction pendente lite—when appeal from order granting will not be heard, on ground that action has been tried on merits, and temporary injunction is merged in judgment entered.

Appeal by the defendant from an order made at special term, December 29, 1882, continuing the injunction heretofore granted pendente lite, December 4, 1882, restraining the defendant, his agents and servants, from continuing the work upon the building or tenement-house, known as No. 1089 First avenue, in the City of New York, and from completing or finishing the same contrary to the requirements of law, and from selling, letting, hiring, occupying, or using in any manner the said house or any part thereof.

The action was brought to enforce Laws of 1867, 1879 and 1880, known as the tenement-house laws.

After the order appealed from had been entered and before the appeal therefrom had been heard the action was tried on its merits and a judgment was entered restraining the defendant from doing the acts, the doing of which hid been restrained by the order appealed from.

The court at General Term, said : “ The order appealed from is merged in the judgment. An examination of the records of the court shows that the judgment covers the whole case, and that it superseded the injunction order. In such a case, the court will not hear the appeal from an order that has been merged in a judgment but will leave the appellant to his appeal from the judgment.”