Page images
PDF
EPUB

FORM No. 634. Against usurping office and taking the fees. 73 From molesting, interfering with, or disturbing the plaintiffs, or any of them, in the use, enjoyment, or exercise of the said duties respectively appertaining to the plaintiffs as the master and wardens of the port of New York and their clerk; and from taking the fees thereof, and from demanding or receiving fees or emoluments from any person or persons for any such services; and from acting as surveyors of any vessel deemed unfit to pro ceed to sea, and from judging or acting as judges of the repair which might be necessary for the safety of such vessel on the intended voyage; and from selling, under their inspection, ressels or goods arriving at the port of New York damaged, and for the benefit of underwriters out of the city of New York; and from certifying the cause of such damage, the amount of sale of such vessel or goods, and the charges attending the sale; and from taking or making any survey on board of any ship or vessel, or at any store in the city of New York, or along the docks or wharres thereof, or damaged goods; and from giving or granting any certificate in consequence of damaged goods; and from taking or making any survey on board of, or relating to, any ship or vessel put into the port of New York in distress, to ascertain the damage sustained thereby, and whether any such ship or vessel shall pay or be liable for foreign duties and tonnage, or otherwise.

FORM No. 635.

Against police interference.74 That the defendants, both individually and as members of the police department of the city of New York, and each of them, and

73 Compare Morris 1. Whalen, 11 Abb. N. C. 64, which disapproved Palmer v. Foley, 36 N. Y. Super. (t. 14.

74 The power to grant an injunction in a proper case, against unlawful police interference, is well established. See Delaney 1. Flood, 183 X. Y. 323; Burns r. Me Adoo, 113 App. Div. 165; Clearly 1. Same, 113 Apr. Div. 178; McGorie v. Same, 113 Anp. Div. 271; Levy 1. Bingham, 113 App. Div. 424; Hagan r. McAdoo, 113 Ann. Div. 506; Hale r'. Burns, 101 App. Div. 101, 91 N. Y. Supp. 929; Weiss ('. Herlihy, 23 App. Div. 608, 49 N. Y. Supp. 81; Hertz r. McDermott, 45 Misc. 28, 90 N. Y. Supp. 803 ;

Cercle Francaise de L'Harmonie r.
French, 19 Abb. N. C. 32; Manhattan
Iron Works Co. t. French, 1? Abb.
N. C. 416, and other cases there col.
lected.

A general clause in the order, restraining the police from making arrests, was held too broad in Kramer P. Board of Police, 53 N. Y. Super. (t. 492. The court, on reversing the order on this ground, sar: ** The order granted in this case went further than to restrain the arrest of the plaintiff and his employees. The defendants are 'enjoined from arresting or taking into custody any person engaged upon the premises of the plaintiff in the transaction of any

the inspectors, captains, sergeants, roundsmen, patrolmen, and officers under the command of each of them be and they are hereby enjoined and restrained from maintaining or stationing policemen, or police officers, within the premises leased and occupied by the plaintiff herein, at No.

in the [Borough of Manhattan, city of New York], and also from keeping, stationing or maintaining within the said premises, or in the halls and in the doorways leading thereto, any of the officers under the command of either of said defendants, against the will of this plaintiff, or otherwise to unlawfully oppress this plaintiff and persons in his employ, and customers and persons desiring to do business with the plaintifi, and persons lawfully entering upon said premises leased and occupied by the plaintiff herein, or from unlawfully trespassing upon said premises.

FORM No. 636.

Against interference with health board.75 From entering into, taking possession of, holding, using, occupying or interfering in any manner with the use and occupancy of the said rooms and offices by the said plaintiff, its bureaux, officers, agents and employees; and from neglecting and refusing to permit the occupancy of said offices and rooms, or any part thereof, by the plaintiff; and from neglecting and refusing to give up to the use of the plaintiff and its corps of vaccinators the rooms and offices now and heretofore held by them, of which the said defendants, their officers or agents, may have taken forcible possession without an order of the court, and without due process of law; and from ejecting or removing any records, books, papers, furniture, instruments or apparatus belonging to the plaintiff from such rooms and offices; and until the hearing and decision as aforesaid, the said defendants, each and all of them, are ordered to permit the use and occupancy of such rooms and

business with the plaintiff, and from in any manner proceeding against any such person by arrest, or other. wise, in the conduct of said business upon plaintiff's premises.

“ Such an injunction would give any person engaged upon the premises of the plaintiff the transaction of any business, immunity from ar. rest for any crime and practically nullify the statute which gives to the members of the police force power and authority to arrest and take into custody any person who shall com:

mit, or threaten, or attempt to commit in the presence of such officer any offense prohibited by law.”

An injunction restraining official action will only issue when plaintiff shows that the action complained of is a clear violation of law, and plaintiff's rights must be certain as to the law and the facts. Stockton r. Buf. falo. 108 App. Div. 170.

75 Sustained in Health Department 1. Police Department, 41 N. Y. Super. (t. 323. See, as to mandatory part, par. 9, p. 908, and p. 959, note 71.

offices as heretofore enjoyed by the plaintiff, its officers, agents and employees.

FORM No. 637. Against intimidating plaintiff's employees. The defendant association, its each and every member, said individual defendants and each of them, and their and its agents, servants, representatives, and coadjutors, and all persons connected with them or either of them, be and they are hereby enjoined and forbidden from assaulting, menacing, threatening. or intimidating, whether by manner, attitude, speech, numbers. or other act or means, the men and workmen in plaintiff's employ, or who come to plaintiff for employment, and with interfer ing with plaintiff's business by any unlawful means for the purpose of preventing any person or persons who now are or mas hereafter be in plaintiff's employment, from continuing therein, or who being desirous of entering said employment from doing 50 or continuing therein.76 [And from requesting in such manner as to express or imply a threat, intimidation, coercion, or force, of any such workman now or hereafter in plaintiff's employ, that he leave such employment.]"

5. RESTRAINT or LEGAL PROCEEDINGS.78

FORM No. 638. Injunction and stay of proceedings against plaintiff in cross-action, and all

others similarly situated, against suing, pending litigation on a precedeat question.79

From prosecuting the action commenced and now pending, in the court, county of

wherein M. L. H. is plaintiff,

[ocr errors]

76 From the order upon which the defendants were punished for con. tempt in People ex rel. Stearns v. Marr, 181 N. Y. 463. Such defendants were not named as parties in the action and were not personally served, but had knowledge of the injunction order.

77 Bracketed portion from Sun Printing Assoc. 1. Delaney, 48 App. Div. 623, 62 N. Y. Supp. 750.

78 As to security in this class of cases, see p. 973.

79 In this case, Barrett, J., said: “There can be no doubt that equity and good conscience demand that the action on the bond should be stayed

until the decision of the appeal or 2) peals from the surrogate's decree.

The only question in my mind was, whether the surety should not be remitted to a motion for a star in the Westchester county action. I am satisfied, however, upon reflection and upon consideration of all the facts which he presents, that relief should be afforded in this independent action. The reason is obrious. The plaintiff in the Westchester county action sues upon behalf of himself and a number of other per. sons who are interested in the estate. These other persons are not parties to that action, nor is the plaintiff her.

and J. N. H. and F. H. are defendants, and all further proceedings by or on behalf of the plaintiff in said action, are hereby stayed until after the hearing and determination of any and all appeals taken or which may hereafter be taken to secure a review of the decree made by the surrogate of the county of in the matter of the estate of A. H., deceased, on the of

19 It is further ordered, that the defendants above-named, ana each of them, their and each of their attorneys, agents, servants, and employees be, and they and each of them hereby are, enjoined and restrained during the pendency of this action, from commencing, instituting, or prosecuting any action or actions in this or any other court, for the purpose of enforcing, collecting, prosecuting or suing upon the bond executed by the plaintiff J. N. H. and defendant D. M., as sureties for F. H., as executors of the estate of A. H., deceased. [And why — or, and — the time to answer the complaint in said action commenced by said M. L. H., should not be — or, is hereby - extended until days after the determination of said appeal and due notice thereof.80]

FORM No. 639.

Against proceedings at law; ejectment. From proceeding further against the plaintiff A. B., in the action commenced by the defendant Y. Z. against him in the Court of this State, for the recovery of the possession of [designating premises], with their appurtenances; and also from instituting or proceeding in any new or other action at law for the recovery of the possession of said premises, or any part thereof.

FORM No. 640.

The same; action for damages, etc. From proceeding further in the action brought by said Y. Z. in the Court, against A. B. above named (upon the

self in her representative capacity. A stay as to the plaintiff there individually would not prevent any one of these other parties from commenco ing other actions, nor would it probably prevent the plaintiff herself as executrix. Thus the present plaintiff clearly brings himself within familiar ground of equity jurisdic. tion, and the case of Erie Ř. Ř. Co. v. Ramsey (45 N. Y. 637), is in point. Upon the whole, I am of the opinion

that the motion should be granted, with costs, to abide the event, and that all parties in interest, as well as the particular plaintiff moving, should be enjoined as prayed for.” This order was reversed solely because the relief in this case could be had by stay in the other action. Hayward v. Hood, 39 Hun, 596.

80 See as to extension of time, p. 48, supra.

a

bond of the said A. B., dated the day of

1: and from instituting or proceeding in any new or other action (upon such bond] ; and from commencing any action or actions against the plaintiff for the recovery of [designating the alleged debt or demand. 181

FORM No. 641. The same; with leave to proceed to judgment. [ As above, adding:] But said Y. Z. is at liberty, without prejudice to the equitable rights of the plaintiff herein to proceed to judgment only in the suit which said Y. Z. has already comienced against the said A. B., notwithstanding this injunction.

FORM No. 642.

The same; in a case of interpleader, [Add to Form 616:] upon the plaintiff paying into the hands of the clerk of this court the sum of dollars, mentioned in the complaint in this action.82

FORM No. 643.

Another form. From bringing, or further prosecuting, or carrying on any action, including the action brought by A. B. in the

Court. against Y. Z. and the enforcement of any order or direction heretofore made therein), and from taking any steps or proceedings to recover the [sum of $100 deposited with the plaintiff by the defendant's deceased husband] until further order of the court.83

81 See note 79, supra. For another form see Yo, 638.

82 The common order for an injunction in an interpleading suit, is irreg. ular, if it does not make the issuing of the injunction dependent on the payment of the money into court. Pauli r. Von Melle, 8 Sim. (8 Eng. Ch.) 327.

83 From German Savings Bank o. Habel, 80 N. Y. 273. In that case the first clause in brackets above inserted was not in the order, and there was no allusion in the recitals or body of the order to costs of the action enjoined; and the attorney proceeded to

enforce payment of costs of a motion previously granted.

Per curiam : “ The injunction clause in the order did not probibit the collection of the costs awarded. but the prosecution of the action, or any steps to recover the $400 on de posit in the name of Habel."

“Under these circumstances, the costs were collectible and the attorney was justified in issuing the precept. If it had been intended to prevent the collection of the costs, the order should have been broad enough to cover them."

For another Form see No. 690.

« PreviousContinue »