Bush v. Phillips — 3 Wend. 428

Majority

p. 428

Bush vs. Phillips.

Headnote

st^^astewffl he granted af. meneement of suit on a prop-Whether^'notice of the apshouldTe given to the de-

Motion for an order to prevent waste. This motion was made on an affidavit, stating that an action of ejectment had keen commenced during the present term for the recovery of 400 acres of land in the county of Sullivan; that the princiPal value of the premises consists in the pine timber and other timber thereon; that the defendant, with several persons in his employment, is now actually engaged in cutting down the pine timber with a view of converting the same into logs, boards, &c. and taking and carrying away the same ; and that the deponent (the plaintiff) verily believed that the defendant would continue to commit waste unless prevented, by the order of this court.

R. S. Street, for plaintiff.

By the Court,

This case calls for "the exercise of the power of this court, conferred by the Revised Statutes, (2 R. S. 336, § 18.) The only doubt as to the granting of the, order has arisen from the application being ex parte, notice hot having been given to the defendant. Whether notice should be required of applications for orders of this kind, we do not now determine. Under the circumstances of this case, we grant the order.

Order granted.^[1]

* Thu section of the act is in these words. ■ “After the commencement of any. action for the reeovery of land, or for the recovery of the .possession of land, the defendant shall not make any waste of the land in demand, pending the suit; and if such defendant shall commit waste, the court in which the suit is" pending shall have power, on the application "of the plaintiff, to make an order restraining the defendant from the commission of any further waste thereon.”