Burgess Bros. v. Stewart

| N.Y. App. Div. | Nov 15, 1920

Without passing upon the merits of the controversy and following the usual policy of this court on appeals from orders granting injunctions pendente lite, we think that the issues presented by the pleadings should be heard and determined at a trial, and that we should not attempt to decide them upon affidavits. It appears that the case has been reached upon the calendar, and trial may be had immediately. It is only where, accepting plaintiff’s version of the facts so far as there is dispute respecting the same, it seems clear that he is not entitled to the relief sought, that the court will interfere with the discretion exercised at Special Term. (Greene v. Faber, 158 A.D. 149" court="N.Y. App. Div." date_filed="1913-07-25" href="https://app.midpage.ai/document/greene-v-faber-5229772?utm_source=webapp" opinion_id="5229772">158 App. Div. 149.) That was the situation presented in the Reardon cases,^* cited by the appellants; but the present appeals present different issues. The conclusions of the learned judge at Special Term on the facts as presented in the affidavits are not necessarily binding upon the trial judge, who hears the evidence from the witnesses. It is best for all parties that such trial be had and the facts so determined and found. The order appealed from is, therefore, affirmed, with ten dollars costs and disbursements. Jenks, P. J., Rich and Kelly, JJ., concur; Mills and Black-mar, JJ., concur in the result.

* Reardon, Inc., v. Caton (189 A.D. 501" court="N.Y. App. Div." date_filed="1919-11-21" href="https://app.midpage.ai/document/p-reardon-inc-v-caton-5255245?utm_source=webapp" opinion_id="5255245">189 App. Div. 501); Reardon v. International Mercantile Marine Co. (Id. 515).— Rep.