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4. Disobedience.] -- Disobedience may be punished by proceedings for contempt," and is also ground for refusing to allow the delinquent to proceed in the action generally.38
FORM No. 661. Affidavit of service of injunction granted by a judge.39 [Title of court and cause.] [Venue.]
C. D., being duly sworn, says, that he is the managing clerk in the office of 0. P., the plaintiff's attorney, in this action ;*' that at in the city of
in the county of this State, on the
minutes past o'clock, in the noon, he served the injunctionorder, of which the annexed is a certified copy, personally upon the defendant Y. Z., * by showing the original order to said de fendant and the signature of Hon. J. K. thereon, and delivering a copy of said order [if the order was ex parte, add, together with a copy of — designating the papers on which the order vas granted] to said defendant [or, if defendant is a corporation, say, by showing the original order and signature of Hon. J. K. thereon, M. N., the president of the
coinpany, defendant above-named — or designate other officer or agent on whom serrice was made — and delivering a copy of said order - and if the order was ex parte — together with a copy of - designating the papers on which it was granted — to said M. N.], and learing said copies with him; and † that deponent knew the person so served to be the defendant [or, to be such president) as aforesaid. [Jurat.]
[Signature.] [If proof of service of summons is inserted, add statement of the
age of deponent. See Form No. 369, p. 641.]
FORM NO. 662. Affidavit of service of injunction granted by the court. [As in last Form to the asterisk, continuin:] by delivering to said defendant, and leaving with him [or, if on a corporation,
37 See chapter on CONTEMPT. 38 See page 142, supra.
39 Sustained by Mayor, etc., of New York r. Staten Island F. Co., 64 N. Y. 622, affig 40 Super Ct, 300, where a much more meager affidavit of service
was held sufficient to support an at. tachment for contempt.
40. If service of summons is included, insert statement
See D. 641.
by delivering to M. N., the president — or designate other officer or agent on whom service was made of the
company, defendant above-named, and leaving with him] a certified copy thereof [if the order was made ex parte, add together with a copy of the — specifying papers on which it was granted], and [continue as in last Form from the t].
GETTING RID OF AN INJUNCTION,
1. Power to refuse to continue or to
dissolve on the giving of in
demnity. 2. - the practice. 3. Motion to vacate or modify,- in
junction granted on notice. 4. ex parte injunction. 5. temporary restraining order. 6. — application on new facts. 7. Appeal. 8. — stay or suspension. 9. Motion and appeal. 10. Effect of judgment.
(664) Order vacating ex parte an
injunction granted ex parte. (665) Order to show cause why in
junction should not be va
cated or modified. (666) Notice of motion to vacate or
modify injunction. (667) Order granting or denying
motion (on notice or order to show cause) to vacate or
modify injunction. (668) The same; on the ground of
abatement. (669) The same; dissolving as to
some and continuing as to others.
judge to vacate ex parte in-
1. Power to refuse to continue or to dissolve on the giving of indemnity.]— The court has a discretionary power to dissolve even a proper injunction on the defendant giving indemnity ;41 but this is not matter of right on the part of defendant. The provision of the New York statute43 declaring that “the court or judge must, where the alleged wrong or injury is not irreparable and is capable of being adequately compensated for in money, vacate the injunction order upon the defendant's executing an undertaking in such form and amount and with such sureties as the court or judge shall direct, conditioned to indemnify the plaintiff against any loss sustained by reason of vacating such injunction order ” — was not intended to require this to be done where plaintiff's right is clear, and the conduct restrained would be illegal.44
41 Northern Pac. R. R. Co. v. St. Paul, etc., R. R. Co., 2 McCrary, 260, Myers' Fed. Dec. 1675, 4 Fed. Rep. 688.
42 McWilliams Mfg. Co. v. Blundell, 11 Fed. Rep. 419 (Patent case). 43 N. Y. Code Civ. Pro., $ 629. 44 Thayer v. Rochester City, etc., R. R. Co., 15 Abb. N. C. 52, and cases cited.
2. – the practice.] - Application for such relief shouid be made to the judge or court by whom the injunction was granted.” but it may be made before decision on an order to show cause why an injunction should not be granted or continued. 48
The affidavit must state facts and circumstances on which the court can determine as matter of proof, that the injury is not irreparable but is capable of adequate compensation in damages. A general allegation on this point is but matter of opinion and insufficient.47
The undertaking should afford a full indemnity;48 and under the New York statute an order dissolving an injunction upon an undertaking which does not follow the terms of the statute above stated is error, if the damages sustained by vacating might prore more than those stated as indemnified against. 49
3. Motion to vacate or modify — injunction granted on notice.] - One who omits to oppose the granting upon notice, or the continuance of an injunction after order to show cause, or opposes it unsuccessfully, cannot (except on subsequently occurring facts) move to vacate or modify it without leave,50 which ought to be reserved in the order granting or continuing the injunction in order to secure the right.
If such reservation was not made, the party is left to his motion for teave, or to resettle the order by expressing leave. 52
45 Metropolitan Elev. R. R. Co. r. Manhattan Ry. Co., 65 How. Pr. 277.
46 Metropolitan Elev. R. R. Co. v. Manhattan Ry. Co., 11 Daly, 367, 65 How. Pr. 319, 2 Civ. Pro. R. (McCarty) 473, which see at p. 134, supra, note 71.
Unsuccessfully resisting such an order to show cause, without offering to give security to dissolve, has been held to preclude a subsequent application. Quantrell v. Boynton (ANDREWS, J.), N. Y. Daily Reg. June 17, 1886.
47 Metropolitan Elev. R. R. CO. r. Manhattan R. R. Co., 65 How. Pr. 277.
48 See, as to what damages and loss the undertaking should cover, DeCamp 1. Burns, 33 App. Div. 517, 53 N. Y. Supp. 1035; also, Section V of this Arti cle, paragraph 5, page 993.
43 Chamberlin v. Buffalo, N. Y., etc., R. R. Co., 31 Hun, 339.
Otherwise of a voluntary undertaking given to secure dissolution by consent. Candee t. Wilcox, 26 Hun, 666.
In the case in 11 Daly, 367 (above), it was directed that the undertaking be in such form as to indemnify the plaintiffs against any loss or injury they may sustain by the vacating of the injunction from time of vacating it to the trial and judgment.
50 The rules here stated are the result of the application of sound general principles (see volume I, pp. 157-165), and are expressly applied to injunctions hy N. Y. Code Civ. Pro., 88 626–628.
51 See Forms 552, 553. 52 See p. 159.
Whether leave has been reserved or is unnecessary, the motion to vacate or modify should be made on notice, and to the judge or court that granted the injunction, 53 and, if to the court, then at a term at which a contested motion can be heard.
The motion to vacate or modify may be made upon the original papers (except that if leave is to be asked there must be affidavits supporting that request), or upon papers on defendant's part in opposition, or both. If defendant had leave reserved in the injunction, he may apply if he choose on the original papers, and if unsuccessful may apply again on papers in opposition.64
To apply on defendant's new papers in opposition permits plaintiff, under the New York practice, to produce new affidavits in support of the injunction.55
4. -- ex parte injunction.] To vacate, in whole or in part, an injunction granted ex parte, an ex parte application may be made, either,
1. If granted by a judge, to the same judge, or to the appellate division ; 66 or (upon affidavit to the statutory reason),57 to another judge of the court or to the court at Special Term.
2. If granted by the court at Special Term, to the judge who held court when it was granted (applying either in court or out), or to the Appellate Division; or upon affidavit to the statutory reason) to a Special Term held by another judge of the court.
3. If made by the Appellate Division, to the Appellate Division.58
In either case there is power to entertain ex parte an application to vacate an ex parte injunction ;59 but unless some wrong practice in obtaining the order, or inadvertence or imprudence in granting it, call for immediate retraction, or the emergency does not justly admit of the necessary delay, the court or judge will
53 See p. 164.
56 The Appellate Division will entertain the application only if some special necessity therefor exists. Matter of Barkley, 42 App. Div. 597, 59 N. Y. Supp. 742.
57 Code Civ. Pro., $ 626.
58 The fact that the present Appellate Division is not composed of the same judges as that which granted it does not preclude the application.
59 P. 91, etc., supra; N. Y. Code Civ. Pro., $ 626; S. P., Bruce v. D. & H. Canal Co., 8 How. Pr. 440; Coffin v. Prospect Park, etc., R. R. Co., 61 How. Pr. 105.
usually leave the party to his motion.co If this is done, the proper practice is not to call in the adverse party to a hearing on the application already presented ex parte, but to take an order to show cause returnable before the judge, if he granted the injunction, or before a term at which a contested motion can be heard, so as to bring the motion within the rule that an application on notice to vacate a judge's order may be made either to the judge who made the order, or to the Special Term, and on the same or additional papers.
5. --- temporary restraining order.] -A temporary straining order, pending an order to show cause why the defendant should not be enjoined pending the action, is an injunction within these rules; but an application to vacate such an order is not generally to be allowed to supersede the hearing on the order to show cause, but only to quicken it if need be, or to make a temporary modification in the interim.
6. — application on new facts.] — Neither a decision of a motion for injunction on notice, nor the decision of an application regularly made on notice to vacate an injunction, whether the application be made on the original papers, or on papers in mpposition, precludes an application founded on new facts occurring since then, or upon the fact that a complaint made since such decision fails to show a cause of action sufficient to entitle plaintiff to an injunction for a cause of action stated in the injunction. 62
7. Appeal.] - An order granting an injunction is appealable to the Appellate Division; 6 but not to the Court of Appeals.
8. stay or suspension.] - Where an appeal lies, the court may grant a stay of the respondent's proceedings on the injunction,
60 For instances of the denial of ex parte applications, see Gere r. V. Y. Central, etc., R. R. Co., 38 Hun, 231; Peck 1. Yorks, 41 Barb. 547, afi'g 24 How, Pr. 363.
61 See supra, p. 162; Hawkins r. Pekas, 44 App. Div. 395, 60 N. Y. Supp. 1109 (this rule is peculiar to injunction orders).
62 N. Y. Code Civ. Pro., & 628.
63 One not expressly restrained may appeal if he is prejudiced by the efect of the injunction, as where it forbids a co-defendant from paying money to him. Landers r. Fisher, 24 Hun, 648.