CHAPTER III. Injunction.* SECTION 218. Writ of injunction abolished, and order substituted. 219. Injunction, in what cases granted. 220. At what time it may be granted. 221. Notice, when required. Temporary injunction. 222. Security upon injunction. Damages, how ascertained. 226. Affidavits on motion. § 218. [191.] stituted. Writ of injunction abolished, and order sub The writ of injunction as a provisional remedy is abolished, and an injunction by order is substituted therefor. The order may be made by the court in which the action is brought, or by a judge thereof, or by a county judge in the cases provided in the next section; and when made by a judge may be enforced as the order of the court. a. See note to section 403, as to when the injunction order may be granted by a county judge. Drake v. b. The motion for an injunction may be made at a general term. Hudson R. R. R. Co., 2 Code Rep., 67. Injunction against State Officers. c. Whenever any duty shall be devolved by law of this State upon any State This chapter substitutes an order for the writ heretofore used, and defines the cases in which it may be granted. It does not create a new remedy. On the contrary, it recognizes the injunction as an existing provisional remedy. Its character, as a mode of equitable relief, is not at all altered or impaired. Linden v. Fritz, 3 Code Rep., 165; 5 Pr. R., 188. d. The distinction in the English books, between a common injunction which issues on some default of the defendant, and special injunctions granted on special application to the court, is of no importance. All injunctions, in this country, are granted on the merits and on special application to the court, and generally ex parte, on filing the bill. Buckley v. Corse, 1 Saxton's Ch. R., 504. e. The code does not alter the rule of equity respecting the allowance of injunctions. Howard v. Ellis, 4 Sand., 374. The cases in which an injunction may be granted, are the same as were established in our court of chancery. Linden v. Fritz, 3 Code Rep., 165; Linden v. Hepburn, 3 Sand., 668. _The law in regard to injunctions has not been materially changed. Corning v. Troy Iron and Nail Factory, 6 Pr. R., 92. This enactment very materially enlarges the power of the court in the use of preliminary injunctions. Cure v Crawford, 1 Code Rep., N. S., 18. See, also, Capet v. Parker, ib., 90; Perkins v. Warren, 6 Pr. R, 341; Malcomb v. Miller, ib., 456. officer or board of officers, no injunction shall be issued to restrain such officer or board, or any person employed by them, or to prevent the execution of any such law, unless the same be granted by the supreme court sitting in the district in which such board shall be located or such duty shall be required to be performed, at a general term of said court. (Laws of 1851, ch. 488, s. 1.) Before hearing any application for an injunction in the cases specified in the preceding section, at least eight days' notice of the time and place of such hearing shall be served on the officer, board, or person against whom the application shall be made; and in case of the inability or omission of the attorney general to appear and defend such officer, board, or person, the governor may employ counsel to perform such duty in place of the attorney general, and to institute any appeal or other necessary proceeding, who shall have the control of such defence or proceeding; and the governor may in his discretion employ counsel to assist the attorney general in defending such officer, board, person, or proceeding. Ib., s. 2. § 219. [192.] (Amended 1849.) Injunction, in what cases granted. [1] Where it shall appear by the complaint, that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of some act the commission or continuance of which, during the litigation, would produce injury to the plaintiff, or [2] when during the litigation it shall appear that the defendant is doing. or threatens or is about to do, or procuring or suffering some act to be done in violation of the plaintiff's rights, respecting the subject of the action and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act. [3] And where, during the pendency of an action, it shall appear by affidavit, that the defendant threatens or is about to remove or dispose of his property, with intent to defraud his creditors, a temporary injunction may be granted to restrain such removal or disposition. a. An injunction order can only go against a party to the action. (Watson v. Fuller, 9 Pr. R., 426). Thus where a motion was made ex parte for an attachment against J. G. and others, persons not named as parties to the action in which the injunction issued, Welles, J., said, "The motion must be denied. The parties sought to be held in contempt are not parties to the action. This in my judgment is fatal. (1 Mad. Ch. Pr., 175, 3d Lon. ed.) Independent of the former practice of the court of chancery, I think it is plainly to be inferred from the code that au injunction order can only go against a party to the action." b. An injunction directed to a corporation is operative and binding, not only on the corporation itself, but upon every person whose personal action as a member or officer of the corporate body it seeks to restrain or control. Davis v. Mayor, &c., of N. Y., 1 Duer, 451. c. The figures within brackets form no part of the section, and are only inserted for the convenience of reference. Note to part [1]. d. The court cannot by injunction compel the undoing what has been done. Bradbury v. Manchester, &c., Railway Co., 15 Jur., 1167; 7 Eug. L. & E. R., 143. a. To authorize an injunction, there should not only be a clear violation of the plaintiff's rights, but the rights themselves should be certain, and capable of being clearly ascertained. Olmstead v. Loomis, 6 Barb., 152. b. "This section may and probably does authorize a preliminary injunction in some cases of trespass, where it could not be granted by the former practice. Jerome v. Ross, 7 Johns. Ch. R., 315. But it cannot be construed to create new rights of action, or give new remedies," Barculo, J., Wordsworth v. Lyon, 1 Code Rep. N. S., 163; 5 Pr. R., 463. c. The question has been considerably discussed whether this provision autho rizes the issuing an injunction to restrain parties from proceeding under the law to recover possession of real property by summary proceedings. Before the code, in Smith v. Moffat (1 Barb., 65), Edmonds, J., held that no injunction could issue in such a case; but in a case subsequent to the code, Cure v. Crawford (1 Code Rep. N. S., 18), he held that this enactment greatly enlarged the powers of the court in the use of a preliminary injunction ;" and that since the code the supreme court might grant an injunction to stay summary proceedings. A contrary view of the subject was taken by Barculo, J., in Wordsworth v. Lyon, 1 Code Rep. N. S., 63; 4 Pr. R., 463. Subsequently, Roosevelt, J., held that by the true construction of the code, an injunction cannot be granted to stay or suspend proceedings under the statute (2 R. S., 516) for the recovery by summary proceedings of the possession of houses or lands. Hyatt v. Burr, 8 Pr. R., 168. And in a note, p. 170, “ I have consulted on this subject with two of my colleagues, with the view of establishing a uniformity of practice on a point so important to the community, as well as the profession; and they concur with me in saying that by the true construction_of_the code an injunction cannot be granted to stay or suspend proceedings under the statute for recovering summary possession of houses or lands." We believe that now the supreme court in the first judicia! district uniformly refuse to order an injunction in such cases. In the superior court it is otherwise. Oakly, Ch. J., in Forrester v. Wilson (1 Duer, 624), with the concurrence of all the judges of that court, held that that court would relieve a tenant, upon equitable terms, against whom a judgment of dispossession, under the act authorizing summary proceedings to recover the possession of land, had been obtained by surprise. In that case, an injunction restraining the landlord from executing a warrant of dispossession was granted, upon the payment into court by the tenant of the rent claimed to be due; and in Capet v. Parker, 1 Code Rep., N. S., 90, the superior court issued an injunction to restrain such summary proceedings. d. An injunction will sometimes be allowed to prevent a multiplicity of suits Woodruff v. Fisher, 17 Barb., 224. e. An injunction will not be allowed restraining a party from transferring or disposing of a promissory note on a mere claim of indebtedness. The plaintiff must not only establish a legal right in such a case, but must show the issuing and return of an execution unsatisfied. Sebring v. Lant, 9 Pr. R., 346, Gibson, County Judge. f. Where the plaintiff appears to be entitled to a decree for a perpetual injunction, he may also have a temporary injunction, pendente lite, provided it is necessary to protect him from injury. Corning v. Troy Iron and Nail Factory, 6 Pr. Rr., 89. g. The obstruction of water courses is such a grievance as calls for the equitable remedy by injunction. Ib. h. Where the defendants constructed a large reservoir above their mills, by damming the stream and erecting a dyke for the purpose of securing a more equable and continuous flow of the water, which gave to them a control over the water, and which, plaintiffs claimed, were exerted by the defendants to the great damage and injury of the plaintiffs in the use of their mills and machinery below, on the same stream (notwithstanding it appeared that said reservoir might, with proper management, have been beneficial to plaintiffs); and it appearing that both parties were equally entitled, as riparian proprietors, to the use of the stream; held, that the plaintiffs were entitled to an injunction pending of an action for damages for such injuries, and to secure protection against future injuries of like character. 1b. a. In a suit for winding up the affairs of an alleged partnership, by one claiming to be a partner, but whose right as a partner is wholly denied by the defendant, and is not clearly established by the affidavits, the court will not grant an injunction restraining the defendant from intermeddling with the property of the alleged partnership. Goulding v. Bain, 4 Sand., 716. b. McCrackan v. Ware, 1 Code Rep. N. S., 215, was a cross suit. The complaint prayed for an injunction, but not for a receiver. The complaint in the original suit, Ware v. McCrackan, prayed for a receiver; and in that suit an injunction had been obtained, restraining the now plaintiff, McCrackan, from receiving or disposing of the subject matter of the action, partnership property. On motion for an injunction and receiver in this suit, the motion was granted, although no receiver was asked for by the complaint, and it was held, that where two parties have an equal right to the possession of the subject matter of the action, and one has enjoined the other from receiving or disposing of the same, an injunction will be granted as of course, and without any special cause being shown, on the application of the party enjoined, against the party who first obtained the injunction enjoining him from receiving or disposing of such subject matter. c. Where a lessee covenants for a particular use of demised premises, he may be restricted to that use by injunction. Howard v. Ellis, 4 Sand., 369; and see Steward v. Winters, 4 Sand. Ch. R., 587. d. Where it appears that a building, in the course of erection, can be completed without increasing the injury to the plaintiff of which he complains, and that it would be productive of serious injury to continue the injunction, the same will be dissolved. If the building is clearly a nuisance, the use of it should be prohibited, as well as the erection. But if the right of defendant to erect is a matter only of doubt, it is not proper in the first instance to stay the work by injunction. Harrison v. Newton, 1 Code Rep. N. S., 207. e. An injunction and receiver were ordered at the suit of a general creditor of an insolvent firm, the indebtedness being admitted. Dillon v. Horn, 5 Pr. R., 35; and see 7 Paige, 583. f. Injunction to restrain parties using the name of "Irving House." Henriquez, 3 Sand., 725; Stone v. Carlan, 3 Code Rep., 67. Howard v. g. Where a complaint prayed a forfeiture of a lease for a breach of a covenant, and an injunction to restrain a continuance of the alleged breach, and an injunetion had been granted, the court, on motion to vacate the injunction, ordered the plaintiff to elect either to retain his injunction, or to proceed in the suit for a forfeiture. Linden v. Fritz, 3 Code Rep., 165; Linden v. Hepburn, 3 Sand., 668. h. A complaint, founded on a trespass to lands by cutting wood, &c., and claiming a certain sum for damages, does not come within this section, and plaintiff cannot have an injunction restraining the defendant from cutting the wood, &c., pending the litigation. He can only recover a sum of money by way of damages. Townsend v. Tanner, 2 Code Rep., 6; 3 Pr. R., 384. i. Where a party has a sufficient remedy in an action for trespass, and it does not appear that the injury is irreparable, an injunction ought not to be granted. Ib.. j. Yet courts of equity will interfere by injunction to restrain waste or trespass, and to prevent injury to land, even where the title is in dispute and the right is doubtful, if the waste or trespass will be attended with irreparable mischief, or if, from the irresponsibility of the defendant or otherwise, the plaintiff cannot obtain relief at law. Such interference is based upon the ground of preventing irrepara ble mischief, and the destruction of the substance of the inheritance. Spear v. Cutter, 2 Code Rep., 100. k. And an injunction was sustained where the plaintiff alleged that he was owner of the premises, that the defendant was committing waste by cutting down timber, &c., which would be an irreparable injury, and that he was insolvent, notwithstanding the defendant was in possession as tenant, under a decision in summary proceedings to recover possession of land by a county judge, which the plaintiff de fended, but had carried by certiorari to the supreme court for review, and which was pending and undetermined. Ib. a. A general creditor of insolvent general partners, may on complaint and answer, where the debt is not denied, have an injunction to protect the partnership property and assets, and a receiver appointed. Dillon v. Horn, 5 Pr. R., 35. 6. But an injunction cannot be granted under the first branch of this section, unless a complaint contains a demand for it, as part of the relief sought. Nor can it be granted under the second branch of this section, unless the act to be prevented shall tend to render the judgment" which is obtained," ineffectual." It seems that under the latter branch of the section, the necessity should arise during litigation. Hovey v. McCrea, 4 Pr. R., 31. (Decided under the code of 1848). c. Thus, where the plaintiff moved for an injunction to restrain the defendant from proceeding in an action of ejectment, and demanded in their complaint (after setting out an agreement to convey the premises to plaintiffs), relief as follows, "Wherefore the said plaintiffs demand judgment that said J. M'C, shall fulfil his said agreement, and give them a deed of the said premises." Held, that an injunction could not be granted. Ib. d. Where the plaintiff, in his complaint, claims that one of the defendants purchased a bale of goods of him with intent to cheat and defraud him, and afterwards sold the goods to the other defendant,-the latter charged with knowledge of the fraud, and claims the amount of the goods, and that the defendants are insolvent held to be a case which comes directly under the operation of the first clause of s. 219 of the code, for a temporary injunction to restrain the sale or disposition of the goods by the defendants during the litigation; for it appears by the complaint, that the plaintiff is entitled to the relief demanded, and that it consists in restraining the defendants from a disposition of the goods, which, if permitted, would be an injury to plaintiff. Malcolm v. Miller, 6 Pr. R., 456. e. A temporary injunction cannot be granted to restrain the doing of acts in relation to property, in respect to which acts or property no final judgment is prayed. Hulce v. Thompson (8 Pr. R., 475). Thus where the plaintiff demanded possession of a portion of the premises (a house and door yard), he could not have a temporary injunction restraining trespasses by the defendant upon the remainder of the farm, which the plaintiff claimed to be in his possession, and as to which no relief or judgment was prayed except such temporary injunction. Ib. f. It is not enough for a plaintiff, to entitle him to a temporary injunction, to show that the continuance of the acts complained of will do him an injury; he must also show that it is a case in which he will be entitled to final relief. Corning v. Troy Iron and Nail Factory, 6 Pr. R, 89; Ward v. Dewey, 7 ib. 17; Wordsworth v. Lyon, 5 ib. 463. g. The fact that a suit has been instituted to have a mortgage declared void is no sufficient ground for an injunction to restrain the prosecution of a suit to foreclose the mortgage. Tarrant v. Quackenboss, 10 Pr. R., 244. h. In Dederick v. Hoysradt (3 Code Rep., 86; 4 Pr. R., 350). Harris, J. held that an injunction cannot be issued in one action, to stay the proceedings in another action in the same court. "The only ground upon which courts of equity have ever interfered with proceedings in other courts, by allowing an injunction, is that equitable circumstances have existed, cognizable only in a court of equity, which rendered it unconscientious for the party enjoined to proceed in a court which had no power to grant the relief which the justice of the case demanded. This ground - of jurisdiction can never exist when the proceedings sought to be arrested are in the same court to which application is made for the injunction. No instance can be found, in which a court of equity has interfered, by its writ of injunction, issued in one suit, to stay proceedings in another suit pending in the same court, unless such court, like the present supreme court before the adoption of the code, exercised both common-law and equity powers, as distinct and independent jurisdictions. (Dyckman v. Kernochan, 2 Paige, 26; 1 Hoffman's Pr., 89; 1 Clarke, 307.) The proper practice in such cases is, to apply to the court for an order staying proceedings in the action. Since the distinction between actions at law and suits in equity has been abolished, so that in an action to enforce a strictly legal right, a defence purely equitable may be interposed, I am not aware that any case can occur, in which |