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as in the case of other orders ;®4 but the stay does not leave the appellant at liberty to disobey the order, it only suspends the respondent's right to proceed in court upon it meanwhile.65
The appellate court have power, in advance of the hearing, to modify or suspend the injunction ; but this power is only to be invoked in an extreme case.
9. Motion and appeal.]. — The pendency of an appeal does not preclude a motion to vacate the injunction,67 nor does the pendency of a motion to vacate preclude an appeal.68
10. Effect of judgment.] —A final judgment, whether in favor of 69 or adverse to the plaintiff, and whether on the merits or merely dismissing his suit,to of itself terminates a temporary injunction. If the judgment be in his favor, the continuance of restraint depends on the insertion of an injunction in the judgment." Reversal of judgment on appeal does not of itself reinstate, but motion therefor should be granted as of course.73
64 Sixth Ave. Elev. R. R. Co. v. Gilbert Elev. Ry. Co., 3 Abb. N. C. 53, 56.
65 Sixth Ave. Elev. R. R. Co. '. Gilbert Elev. R. R. Co., 71 N. Y. 430 (30 held in case of appeal from a judgment).
See. also, Leonard v. Ozark Land Co., 115 U. S. 465, where the Supreme Court reiterates the rule laid down in the Slaughter-house case, 10 Wall. 273, 297, that “neither an injunction nor a decree dissolving an injunction passed in a circuit court, is reversed or nullified by an appeal or writ of error before the cause is heard in this court.” (Citing also Hovey r. McDonald, 109 U. S. 161.)
66 See Leonard v. Ozark Land Co. (above cited). 67 Ireland r'. Nichols, 9 Abh. Pr. (N. S.) 71, and supra, p. 163, par. 176. 08 Same paragraph.
69 Musgrave r. Staylor, 36 Md. 123; Gardner 1. Gardner, 87 N. Y. 14, 62 How. Pr. 265; Webber v. Wilcox, 45 Cal. 301 (holding sureties not liable for damages accruing after judgment though the judgment was subsequently reversed).
70 See Bishop r. Bascoe, 9 Wkly. Cin. L. Bul. 111, and cases cited.
As to effect of amending complaint upon demurrer sustained, see Shipman v. Superior Ct. (Cal. 1897), 12 Pac. Rep. 787.
71 Pocantico Water Works Co. t. Low, 21 Misc. 172, 47 N. Y. Supp. 72; Reynolds 1. Everett, 67 Hun. 294. 22 N. Y. Supp. 306; aff'd, 144 N. Y. 189.
72 Jackson 1. Bunnell, 113 N. Y. 216; Carpenter v. Fisher, 18 App. Div. 561, 46 N. Y. Supp. 5.
73 Hatch v. W. U. Tel. Co., N. Y. Daily Reg. Dec. 20, 1882.
FORM No. 668. Affidavit to apply ex parte to judge or court to vacate ex parte injunction. 74 [Title of court and action.] [Venue.]
Y. Z., being duly sworn, says:
I. That he is the defendant above-named, and that on the day of
, 19 , the injunction order hereto annexed was served on him, with the copies of the papers on which it was granted, which are also annexed.
II. That [here state the condition of the cause in respect to service of the summons and other proceedings: indicating also the irregularity, if any, affecting the injunction.]
III. That said injunction order was granted without notice to defendant or his attorney.
IV. That this defendant has fully and fairly stated the case to
, his counsel, who resides at No. [etc.] in [etc.], and that he has a good and substantial defense on the merits to the action, as he is advised by his said counsel, after such statement, and verily believes. 75
V. [In case of disability or absence of judge who made the injunction or held the term of court when it was made:] That Hon. J. K., who granted the said injunction order [or, who held the term of the court at which the said injunction order was granted], is absent from the country [here state the particulars of absence or other disability of the judge; or, if granted by Appellant Division, that the Appellant Division has adjourned; or otherwise show the inability to make application to the same judge or court).
VI. That deponent is advised and believes that he is entitler? to have the said injunction order vacated [or, modified — staling particulars ] ; but that by reason of the foregoing circunstances, the application cannot be made to the judge or court by whom the order was granted, and that the defendant will be es posed to great injury by the delay required for an applicatio upon notice, by reason of the following circumstances: There sel forth the details, showing the injury inflicted by the injunction,
74 See paragraph 3, p. 984, supra.
75 This oath to merits is not esser tial, but may be useful.
and the way in which delay is prejudicial, and the date of next term, or otherwise show the earliest time at which an application made on notice could be heard.]
VII. That no previous application for an order vacating or modifying said injunction has been made [except, etc., see Form 52, p. 170]. [Jurat.]
[Signature.] FORM No. 664. Order vacating ex parte an injunction granted ex parte. [Name of] Court (or if a court order]
At a Special Term [etc., as in Form
No. 94, p. 255 of this volume.] [Title of action.]
On reading and filing the annexed affidavit of [the defendant] Y. Z., verified on the
19 [if made by a judge other than he who granted the injunction, say, making satisfactory proof that by reason of the absence - or other disability of Mr. Justice J. K., who granted the injunction order in this action, dated the
19 the application to vacate the same cannot be made to him, and that the defendant above named will be exposed to great injury by the delay required for an application upon notice], and it appearing to me [or, to the court], from the papers on which it was granted, that said order ought to be vacated [state ground — or, modified as follows]:
ORDERED, [etc., as in Form 667]. (Authentication as in Form 108, p. 265 of this volume.] [Under N. Y. Code Civ. Pro., S 626, file this order, and the
affidavit on which it was obtained, with the clerk of the court in which the injunction was issued, and serve a copy of both before acting on the vacating of the injunction.]
FORM No. 665. Order to show cause why injunction should not be vacated or modified. 76 [Name of] Court (or if a court order]
At a Special Term [etc., as in Form
No. 94, p. 255 of this volume.] [Title of action.]
On [if applying on the original papers] the injunction herein, dated the day of
19 and the papers on which
76 As to whom to apply to, and where to be returnable, see paragraph 3, p. 984.
As to affidavit in support of this order, see Form 52, p. 170 of this volume.
it was granted [or, if applying on papers in opposition, or on both, add or substitute, and the affidavits of M. N. and 0. P., Verified
19 , and upon the answer77 herein and if the complaint has meanwhile been made, and does not support the injunction,78 add, and on the complaint herein] :
ORDERED, [continuing as in Form No. 60, p. 179 of this rolume, inserting, as the relief sought upon the application, the following: why said injunction herein should not be vacated - or, vacated or modified — or, modified by adding the following clause, stating it or, so as to permit, - etc., stating what is desired].
[If irregularity is part of the ground, specify it,*' for instance, thus: on the ground, among others, that no deposit was made or security given for the payment of the judgment mentioned in the injunction.]
FORM No. 666. Notice of motion to vacate or modify injunction.80 [Title of court and action.]
Please take notice, that on [if applying on the original papers) the injunction herein dated the
19 and the papers on which it was granted [or if applying on papers in opposition, or both, add or substitute, and the annexed affidavits of M. X. and O. P., verified the day of
19 , and if the complaint has meanwhile been made and does not support the injunction, and on the complaint herein), the undersigned will move [continuing as in Form No. 47, p. 166 of this rolume, inserting at the place indicated for the ground of the motion] that the injunction herein dated the
19 be vacated [or, vacated or modified — or, modified by adding the following clause — stating it — or, so as to permit — etc., stating what is desired].
[If irregularity is objected to, specify it, for instance, thus] on the ground, among others, that no deposit was made or security given for the payment of the judgment mentioned in said injune tion.
The statement, paragraph II, as to the condition of the cause, is in practice dispensed with in these motions, and a reason for asking an order to show cause (paragraph III) is not necessary Reynolds Co. 1. Dreyer, 12 Misc. 368, 33 N. Y. Supp. 649.
If a previous application has been made, state details. See Form 52, p. 170.
77 Answer is not essential. Vetron,
78 N. Y. Code Civ. Pro., $ 628.
FORM No. 667. Order granting or denying motion (on notice or order to show cause) to vacate
or modify injunction.81 [Insert in Form 101, on p. 259 of this volume, after “ ORDERED,"] that said motion of said defendant to vacate the injunction herein dated the day of
19 be and the same is hereby denied (with costs against the defendant, to abide the event of the action]. [If denied upon condition, say, upon condition — stating it.] [Or, be granted, and said injunction is hereby dissolved83 (with
dollars costs against plaintiff, to abide the event of the action] [upon condition — for instance, thus — that defendant give security in an undertaking with two sureties, to pay any judgment that plaintiff may recover herein - or otherwise].
[Or, if modified, for instance, thus: ORDERED, that the injunction herein, dated the day of
19 be modified by vacating the provision thereof which restrained — stating it — and that said injunction stand in the respects in which it is not so modified, with dollars costs to be paid by
to or, to abide the event of the action.] [If directed that the effect of the dissolution be postponed: This order is made on condition that it shall not take effect until service has been made, and until the
inst., at o'clock in the
FORM No. 668.
The same; on the ground of abatement. [Insert in Form 101, on p. 259 of this volume, after ORDERED,] that the plaintiff [or, the legal representatives of the deceased plaintiff] revive and continue this action against the [legal representatives of the] defendant within days; or that, in default thereof, the injunction granted herein by me (or, by this court or, by Hon. J. K., a justice of this court — or, county judge of
county), on the day of 19 , against the above named Y. Z., be vacated and dissolved, with
81 As to award of costs in an order, see Form 101, p. 259.
82 As to conditions in orders, see supra, p. 230.
83 If irregularity is among the grounds, say, “ upon the ground, (among others] that, etc., specifying
May insert other directions, for instance, “and defendant is hereby permitted, and leave is given to him, to enforce the satisfaction of the aforesaid judgment described above and set forth in the complaint, and to issue execution upon said judgment.”