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is very common ractice, identified only by reference to the complaint, it will be usually necessary to serve the complaint with the injunction on any agent or servant whom it is desired to put in contempt in case of violation; and even then it may be difficult to charge him in contempt.
In construing an injunction it will not be treated as by implication restraining acts that would not be injurious to plaintiff; therefore it should be explicit as to doubtful matters; but it is better to make it so by a concise general statement than by too minute an enumeration of particulars which may raise an implication that particulars not enumerated are excluded.
In an action to enjoin for breach of covenant, the injunctiou will only be extended to breaches as to which the plaintiffs show that they require protection. General words prohibiting any act in breach of the covenants should not be inserted if no general danger is shown; for the court does not, without necessity, presume there will be a violation of the covenants.53
8. Who to be addressed.] – An injunction should not, in general, be directed to persons who are not defendants.54
It is, however, usual and proper to express that the agents, attorneys and servants of the defendant are enjoined ;55 and whether they are named or not, they are bound by it, if they have notice of it.56 But in an action to restrain legal proceedings at law, it is improper to join as a defendant the attorney employed in those proceedings, unless something more is alleged against him than the prosecution of his client's rights.57
52 Wilkinson v. First Nat. Ins. Co., 72 N. Y. 499, aff'g 9 Hun, 522 (holding that an injunction against receiving a fund did not necessarily forbid suing to judgment for it.
So prosecuting a suit at law against the heirs, is not a violation of an injunction against suing the executors for the debt. Dale v. Rosevelt, 1 Paige, 35.
53 Earl of Mexborough v. Bower, 7 Beav. (29 Eng. Ch.) 127.
54 Marty v. Marty, 66 App. Div. 527, 73 N. Y. Supp. 369; Fellows r. Fellows, 4 Johns. Ch. 25; Chase v. Chase, 1 Paige, 198; Watson v. Fuller, 9 How. Pr. 425; People v. N. Y. Common Pleas, 3 Abb. Pr. 181; Bloomfield v. Snowden, 2 Paige, 355; Sage v. Quay, Clarke, 347; Edmonston ('. McLoud, 19 Barb. 356. For some exceptions to this rule, see Hofi'm. Prov. R. 363.
55 That the agent may be made a defendant and enjoined when his principal cannot be reached, see Osborn 1. Bank of U. S., 9 Wheat. 738.
56 People es rel. Stearns v. Marr, 181 N. Y. 463.
57 Compare Lord Wellesley v. Earl of Mornington, 11 Beav. 181; Davis v. Mayor, etc., of New York, 1 Duer, 451; Armitage v. Hoyle, 2 How. Pr. (N. S.) 438.
9. Mandatory injunctions.] — A temporary injunction of a mandatory character should rarely be granted (save on an admission by defendant) except in those cases where the plaintiff's right is so clear that the denial of the right must be either captious or unconscionable, 58 or where it is necessary to preserve the status quo,59 that is to say, to forbid defendant to cease doing that which he has been doing, and plaintiff claims he is bound to continue doing.co
In such a case it may be granted if necessary to proteet plaintiff's right; and the power to grant such an injunction even in other cases doubtless exists, though rarely exercised.
Thus a temporary injunction against a completed act, such as a completed structure, is rarely granted, for it would be mandatory of removal.
10. Order to stay waste.] -- The order to stay waste here included was originally a remedy conferred by statute on courts of common law, to supply their want of power to grant injunctions; and it is preserved under the new Code and extended to all actions, legal or equitable, affecting the title to, or the possession, use, or
58 West Side Elec. ('0. 1'. (ons. Subway Co., 87 App. Div. 550, 84 N. Y. Supp. 1052.
59 Bachman v. Harrington, 184 N. Y. 458.
60 See the subject discussed and cases collected in Hall 1. Chesa peake, etc., R. R. CO., 23 Am. L. Reg. (V. S.) 126. Compare Lawrence i'. Saratoga Lake R. R. Co., 36 Hun, 467.
61 See People ex rel. t. McKane, 78 Hun, 154, 28 N. Y. Supp. 981: Hanover Fire Ins. Co. r. Germania Fire Ins. Co., 33 Hun, 539, quoted in note to Form 632, post ; Broome 1'. N. Y. & N. J. Tel. Co., 5 Centr. Ř. 814.
Contra, Ward v. Kelsey, 14 Abb. Pr. 106; and see Akrill v. Selden, 1 Barb. 316.
The forms of injunctions given in this chapter, which embrace this feature. are all from actual precedents; and in most of them the mandatory clause was allowed by the court against distinct objection.
This objection to mandatory injunctions is less regarded than formerly. See Lond. Law T., July 31, 1880, page 242; Virg. Coupon Cas., 25 Fed. Rep. 654, 664, where the court explain Marye 1. Parsons, 114 U. S. 325, as not questioning the validity of a mandatory injunction, and say: “The mandatory injunetion is as old as the high court of chancery of England, and will be used as long as the English-speaking race shall maintain a system of chancery judicature. It belongs to the inherent prerogatives of the chancery courts, and to abolish it would be to paralyze their entire jurisdiction.”
Against mandatory injunctions see Harris v. Pounds, 64 Geo. 121, 124.
For the distinction between remedy by mandatory injunction and by man. damus, see Glossop r. Heston, L. R., 12 Ch. Div. 102, 28 Wkly. Rep. 111.
In People er rel. Peck r. Conley, 42 Hun, 98, the court issued a mandamus to the officers of a religious corporation, in view of the recent statute giving courts of equity jurisdiction to preserve the temporalities from diversion, a power which has usually been exercised by injunction.
62 Fox v. Fitzsimons, 29 Hun, 574.
enjoyment of, real property, and to staying damages of any kind to the property, and this without prejudice to the right to an injunction also in any proper case. The remedy is in its nature an injunction, and the court or a judge thereof doubtless may in a single order exercise the power involved in both remedies.
11. Staying legal proceedings.] —A temporary injunction should not usually be granted in an action to restrain legal proceedings before another tribunal, if the proceedings sought to be restrained are such that the plaintiff who sues to enjoin them must have notice and adequate opportunity to be heard on those proceedings, in support of the very objections which his action seeks to present. The court has no power to enjoin temporarily the prosecution of another action, unless the object of the action is to obtain such relief.65
An injunction from a court of one State may forbid actions in other States 66 and in the U. S. courts, but that of a State court cannot restrain the process of or proceedings in Federal courts.68 Vor can a Federal court enjoin a party from proceeding in an action already pending in a State court, save in exceptional
The regulations of the statute restricting the mode of grant
63 N. Y. Code Civ. Pro., § 1691. 64 See on this subject, pages 412, 822, 827: Natkins r. Wetterer, 76 App. Div. 93, 78 N. Y. Supp. 713.
For instances see Jewett v. Swan, 19 Wkly. Dig. 144 (stockholder's action to enjoin proceedings for voluntary dissolution of corporation); Fullan 1. Hooper, 19 Wkly. Dig. 93 (action to enjoin enforcement of judgment obtained by fraud, brought after sufficient time had elapsed to prevent issue of execution except by leave of court); Griffith v. Dodgson, 103 App. Div. 542, 93 N. Y. Supp. 155 (to enjoin proceedings to obtain a patent) : Cantoni r. Forster, 12 Misc. 376, 33 N. Y. Supp. 645; aff’d, 146 N. Y. 405 (enjoining prosecution of action in violation of an agreement); Van Sinderen v. Lawrence, 14 Civ. Pro. 412, 50 Hun, 272 (enjoining proceedings before surrogate).
65 Belasco Co. v. Klaw, 98 App. Div. 74, 90 N. Y. Supp. 593.
66 Dinsmore v. Neresheimer, 32 Hun, 204; Cunningham 1. Butler, 104 Mass. 47, 23 Cent. L. J. 274, and note, but the power is sparingly exercised. Loco. Co. e'. Am. Bridge Co., 80 App. Div. 44, 80 N. Y. Supp. 288; Davis v. Cornue, 151 N. Y. 172.
67 Stevens r. Central Bank of Boston, 52 N. Y. St. Rep. 894; People v. Erie R. R. Co., 36 How. Pr. 129.
68 Moran r. Sturges, 154 U. S. 256; Beardslee v. Ingraham, 183 N. Y. 415.
69 Fisk r. Union Pacific R. R. Co., 10 Blatchf. 518; State Lottery Co. v. Fitzpatrick, 3 Woods, 222; s. P., Live Stock Association v. Crescent City Co., 1 Abb. U. S. 388.
See page 822.
ing injunctions generally, are not applicable to orders of the court restraining actions by or against its officers, such as receivers.
Enjoining the party to an action from prosecuting it does not enjoin the court.1 If it be desired to enjoin the court, take a writ of prohibition."
12. Temporary injunction dependent upon nature of action.]
In cases where the action is brought to obtain a permanent injunction, so that, in effect, a temporary injunction gives to the plaintiff all the remedy to which he would be entitled if he had finally succeeded in the action, it is not, by any means, a matter of course to grant a temporary injunction, unless the right of the plaintiff is clear and the injury inflicted upon him by the act sought to be restrained is irreparable. If there is doubt as to the right of the plaintiff, or as to whether the defendant is overstepping the powers which the law gives him, or whether the plaintiff is in such a situation that he is entitled to equitable relief, a temporary injunction will be refused.73 The rule relaxes, however, when the inevitable result of dissolving or refusing the injunction will be to defeat plaintiff's remedy without a trial. The complaint in such a case must state the facts entitling plaintiff to the injunction sought;75 they cannot be supplied by affidavit.76
1. MOVING PAPERS.
FORM No. 526. Complaint in action in which the right to a temporary injunction depends on
the nature of the action.77 [Allege all the facts relied on as grounds for the injunction (as distinguished from the evidence proving those facts78), and insert,
70 See note 7, to Form 548, and Article on RECEIVERS. 71 Tyler 1. Hamersley, 44 Conn. 419, and see page 823. 72 See page 827.
73 Weiss 1. Herlihy, 23 App. Div. 608, 49 N. Y. Supp. 81; Salzman e. Siegelman, 102 App. Div. 406, 92 N. Y. Supp. 844.
74 Young 1. Rondout, etc., Co., 129 N. Y. 57.
76 Werbelovsky r. Michael, 106 App. Div. 138, 94 N. Y. Supp. 156. See supra, paragraphs 2 and 4.
77“ The remedy by injunction is memorial it has been the rule not to one that is constantly growing and issue an injunction where the parti expanding, and injunctions are now praying for it had an adequate remgranted in cases where formerly the edy at law, but our ideas of what are courts would not have thought for a adequate remedies are changing, and moment of so doing. From time im it is gradually coming to be under
78 See paragraphs 2 and 4 (above).
besides the prayer for judgment, a prayer for a temporary injunction,"' for instance, thus:]
And plaintiff prays that during the pendency of this action the defendants be enjoined and restrained from doing any of the acts aforesaid [or specify the acts desired to enjoin].
[Or, another form:]
And that pending the trial, a temporary injunction order issue enjoining and restraining the defendant association, its members, agents, and all persons associated with them, in the manner aforesaid.
FORM No. 527. Affidavit to truth of allegations in complaint to move for injunction. [Title of court and action.] [Venue.]
A. B., being duly sworn, says:
1. That he is (one of the plaintiffs above named, and the same person who verified the complaint herein).
[Corroborate such allegations of complaint as are made on information and belief, by showing source and grounds, for instance, thus:]
II. That the facts therein stated in respect to the recovery of the judgments by deponent's firm, and by C. D., are true, as deponent is informed by an official search made by the clerk of the county of
at the request of the deponent's attorneys, which deponent verily believes to be true.
III. That the facts recited in said complaint in respect to the issuance and return of the executions as therein mentioned are
stood that a system of law which will not prevent the doing of a wrong, but only affords redress after the wrong is committed, is not a complete system, and is inadequate for the prey. ent needs of society, and that where the rights of the parties are clear the courts should interfere to prevelli a violation of such rights; should prevent the doing of the wrong in the beginning, instead of allowing such rights to be violated and such wrongs to be done, and remitting the party injured to an action for dainages as compensation for such wrongs and ininjuries, at best an uncertain remedy.
Neither will it compel parties whose rights are clear to rely upon the peace officers of the State to protect them in their enjoyment, nor compel them to resort to physical for e to protect themselves or their property from wrong or injury. There is a preventive as well as a remedial justice.” HERRICK, J., in Green Island Ice Co. 1". Norton, 105 App. Div. 331.
79 This is to be done for greater caution, on account of the old practice in chancery, but the omission is not, in my opinion, a defect under the present procedure. See paragraph 5, note 44, page 905.