1 N.Y.S. 319 | N.Y. Sup. Ct. | 1888
It is manifest from the papers in this case that this action was brought under the provisions of Laws 1879, c. 316. That the act of 1879 no longer affords authority for the commencement of an action of this nature it is not necessary to discuss, as the court of appeals in the case of Horton v. Cantwell, 15 N. E. Rep. 546, in January, 1888, decided that the act of 1879 had been repealed by the passage of sections 1866, 1867, Code Civil Proc. The only question, then, to be considered is whether this action can be maintained under section 1866 of the Code. It is to be observed that
Macomber, J., concurs.
I agree that the respondent should not have an injunction under the circumstances of this case, and therefore concur in the result reached by my associates. I doubt the correctness of the conclusion, however, that the action is not maintainable under section 1866 of the Code of Civil Procedure. Adams v. Becker, 13 N. Y. St. Rep. 41. It does not seem to me that this conclusion necessarily follows from the opinion of the court of appeals in the case of Horton v. Cantwell, 15 N. E. Rep. 546.