and affidavit of A. B., verified the

day of

19

[and upon the judgment roll in this action filed on the day of 19 , specifying any papers on which the motion is made], and [after due notice approved by the court, given to Y. Z., and on filing due proof thereof by the affidavit of M. N.], and after hearing T. Z., of counsel for [the defendant] in support of the motion, and A. T., of counsel for plaintiff [or, and no one appearing], in opposition, and after due deliberation had: Now, on motion of T. Z., attorney for [the defendant],

ORDERED, that the notice of the pendency of this action filed by the plaintiff herein in the office of the clerk of this county on the day of 19 be cancelled of record, and that the clerk is hereby directed to enter on the margin of the record of the same a note of cancellation referring to this order [and if filed in any other county, that the clerk of county, upon the filing in his office of a certified copy of this order, enter upon the margin of the record of such notice filed in his said office a note of the cancellation of the same referring to this order]; and that said [defendant] have dollars costs of this motion

to be paid by plaintiff to defendant's attorney.

Enter: [signature of judge by initials of name and title.]

57

ARTICLE III.

INJUNCTIONS (INCLUDING ORDER TO STAY WASTE, ETC.).

SECTION I. OBTAINING AN INJUNCTION.

II. THE SECURITY TO BE GIVEN.

III. SERVING AND ENFORCING AN INJUNCTION.

IV. GETTING RID OF AN INJUNCTION.

V. REMEDY ON THE SECURITY.

5. Restraint of legal proceedings.
(638) Injunction and stay of pro-
ceedings against plaintiff in
cross-action and all others
similarly situated, against
suing, pending litigation on
a precedent question.
(639) Against proceedings at law;
ejectment.

(640) The same; action for dam-
ages, etc.

(641) The same; with leave to pro-
ceed to judgment.
(642, 643) The same; in a case of
interpleader.

(644) Another form; action affect-
ing specific property.
(645) Against prosecuting divorce

in another State.

sale on execution.

sheriff executing writ of assistance.

(648-651) — proceedings for dispossession.

IV. AFFIDAVIT AND ORDER TO STAT

WASTE.

(652) Affidavit and order to stay waste.

(653) Order to stay waste.

1. The practice.] The temporary injunction may be granted prior to service of the summons.11

Before answer the order may be granted ex parte; after answer, only upon notice, or order to show cause12 (though a restraining

11 People ex rel. Cauffman v. Van Buren, 136 N. Y. 252 (to take effect when served with summons).

12 N. Y. Code Civ. Pro., § 609; Rhodes v. Wheeler, 48 App. Div. 410, 63 N. Y. Supp. 184. (The application upon notice must be made to a Special Term or judge within the judicial district, or in an adjoining county.)

order may issue until the hearing and decision of the application).13

The practice is either (1) to take an order to show cause why an injunction should not be granted, with injunction until the hearing and decision of the motion; 14 or, (2) an injunction until the further order of the court or judge, with an order to show cause why it should not be continued pending the action; or, (3) an absolute injunction pending the action, or until the further order of the court leaving it for the plaintiff to move to vacate; or, (4) to move on notice, or on order to show cause as a short notice of motion, for an injunction, but without restraint in the meantime.

The first two methods are substantially the same.15

From an order to show cause with restraint in the meantime, no appeal lies except from the order made after the hearing, or from an order made on motion to vacate or modify, as it is only temporary in character.16 And the same principle appears applicable to the second mode of application.

A court of equity has no inherent absolute power to grant temporary injunctions, pending action; the authority so to do must be found in the Code.17

Inder either the first18 or second19 mode of application security should alike be required in ordinary cases; for such temporary restraint is one form of relief by injunction which the Code provides for, and which the provisions for security contemplate.

The first three methods, obtaining immediate restraint, ex parte, are allowable even without security when the injunction is to stay waste or other damages in an action affecting real property, and is granted by the court or a judge thereof (not by a county judge), either before or after answer, being sustained by the statute as to orders to stay waste.20

13 Id. Sweet r. Mowry. 71 Hun, 383. 25 N. Y. Supp. 32.

14 The papers on obtaining such an order to show cause do not have to show that necessity exists for less than eight days' notice of motion. Reynolds Co. r. Dreyer, 12 Misc. 368, 33 N. Y. Supp. 649.

15 Except the quantum of damage enforcible against the undertaking if the court denies the injunction on the motion. See Sargent r. St. Mary's, etc., Asylum, 112 App. Div. 674, 98 N. Y. Supp. 632 (holding that no counsel fees could be collected where the injunction was by its terms to continue only till the hearing and decision of the motion, and the court denied the motion). 16 Bloodgood r. Erie R. R. Co., 51 Barb. 273: Watt v. Watt, 2 Robt. 685. As to the inherent power of the court, see RECEIVERS.

17 Bachman v. Harrington, 184 N. Y. 458.

18 Methodist Churches v. Barker, 18 N. Y. 463.

19 Sheldon r. Allerton, 1 Sandf. 700, 1 Code Rep. 93.

20 See Forms No. 652 and No. 653.