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and affidavit of A. B., verified the
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.]
INJUNCTIONS (INCLUDING ORDER TO STAY WASTE, ETC.).
I. OBTAINING AN INJUNCTION.
OBTAINING AX INJUNCTION.
1. The practice.
an affidavit. 4. Relative functions of complaint
and affidavits. 5. Prudential rules for drawing injunction papers — the
complaint. 6. the affidavits. 7. the injunction. 8. Who to be addressed. 9. Mandatory injunctions. 10. Order to stay waste. 11. Staying legal proceedings. 12. Temporary injunction dependent
upon nature of action.
I. Moving PAPERS. FORMS. (526) Complaint in action in which
the right to a temporary injunction depends on the
nature of the action. (527) Aflidavit to truth of allega
tions in complaint. (528) Affidavit in corroboration, by
attorney. (529) Affidavit to truth of allega.
tions in complaint; another
(534) Affidavit by co-plaintiffs in
support of motion for in
junction. (535) Notice of motion before court
or judge, for injunction. (536). The same, in action of inter
pleader. (537) Notice of motion at Appellate
Division for injunction to restrain State officer or board, or employee thereof, in statutory duty.
II. INJUNCTIONS. (538) Injunction, ex parte, by court
or judge, where the right depends on the nature of the action - general form with or without order to show cause why it should
not be continued. (539) Injunction, ex parte, by court
or judge, against wrongiul delivery of stock pledged
(absolute). (540) Injunction against disposal of
negotiable bonds, with order
to show cause. (541) Injunction against taking let
ters from post office, with
order to show cause. (542) Injunction against municipal
corporation, forbidding them to authorize the con
struction of a city railroad. (543) Injunction in aid of attache
ment, with order to show
cause. (544) Injunction against summary
proceedings to dispossess; with order to show cause.
(530) The same; another form. (531) Another form; affidavit to
obtain injunction against delivery of pledge wrong.
fully sold. (532) Oath to reason for not pre
senting complaint. (533) Oath denying collusion; to
annex to a bill of interpleader.
(545) Injunction in action of inter
pleader, with order to show
(546) Injunction ex parte, by judge
of court, where the right depends on extrinsic facts;--general form, with or without order to show cause why it should not be con
tinued. (547) Another form; injunction
against disposing of property to defraud plaintiff
(in divorce). (548) Another form; against sher
ifi's interference with re
ceiver. (549) Condition as to further secu
rity, and speeding appeal. (550) Order denying motion to con
tinue injunction contained in order to show cause, and
vacating temporary order.' (551) Injunction, after contested
motion, on notice or order
to show cause. (552) Leave reserved, in denial, to
apply again, or in a partial
on further evidence.
to modify or dissolve. (554) Order denying motion with
(569) removing plaintiff's ob
structions to defendant's
navigation. (573) stopping a way. (574) diverting a water-course. (575) erection, and to compel re
moval of buildings. (576) – authorizing the laying of
a railroad in a city street. (577) - laying a railroad in a city
street. (578, 579 ) – building in violation
of covenant. (580) change in use of premises. (581) contractor interfering with
work after forfeiting his
contract. (582) underletting. (583) carrying on business for
bidden by lease. (584) preventing lessee of the
atre from using it.
2. As to personal property. (585) Against transferring negotia
transfer of stock. transferring assets. assigning, etc., patents. removing chattels. receiving moneys from the sheriff.
II. STATEMENTS OF ACTS EXJOINED,
TO BE INSERTED IN THE FORE-
1. As to real property.
erty. (556) waste or alienation. (557) waste by cutting timber. (558) contractor using lands ex
cept for his work. (559) working a mine. (560) tenant of a mine. (561) taking possession of lands
without payment. (562) taking rents and profits. (503) tax or assessment sale, etc. (564) removing fixtures. (565) nuisance — burning brick. (566) - continuance of
3. As to productions of mind or art.
not against use of plates,
etc., for publication. (594) representation of drama. (595) publishing private letter. (596) utilizing patents. (597) resuming practice, after
having sold business. (598) disclosure of secrets by
clerk. (599) use of a secret in trade,
by one who acquired it in
violation of contract. (600) infringing patent. (601-604) -- infringement of trade
(605) — infringement of name, and
taking letters from post
oflice. (606, 607) infringement of sign,
etc. 4. Parties in peculiar relations. (608) In creditor's actions. (609) Against carrying out void as
signments. (610) – receiving proceeds of ac
(611) husband's interference
with wife's property. (612) entering confession of
judgment. (613) disposing of partnership
assets. (614) Another form; where dissolu
tion is not sought. (615) Against interference with
fund to be reached. (616) assignee for benefit of
creditors making payments. (617) bank paying over deposit
made by agent. (618) the reorganization of a
corporation. (619) preventing use of records. (620) creating or filling vacan
cies. (621) holding corporate election. (622) voting on stock. (623) giving proxy. (624) inspectors receiving votes. (625) issue or transfer of stock,
etc., to an oilicer. (626) mortgaging railroad. (627) issuing corporate bonds. (628) paying interest on bonds. (629) officers of a corporation
executing a contract. (630, 631) – violation of agreement
respecting corporate busi
(632) Mandatory injunction against
refusal to pay over funds pursuant to a continuing
contract. (633) Against railroad company in
terfering with construction
of cross-road. (634) usurping office and taking
the fees. (635) police interference. (636) interference with health
board. (637) intimidating plaintiff's
employes. 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 pron
ceed to judgment. (642, 643) The same; in a case of
interpleader. (644) Another form; action affect
ing specifie property. (645) Against prosecuting divorce
in another State. (646) - sale on execution. (647) sheriff executing writ of
assistance. (648-651) – proceedings for dis
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 cause" (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
Under either the first18 or secondo 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.?
13 Id. Sweet 1. 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 1. St. Mary's, etc., Asylum, 112 Anp. 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 inberent power of the court, see RECEIVERS.
17 Bachman v. Harrington, 184 N. Y. 458.