84 N.Y.S. 603 | N.Y. App. Div. | 1903
Upon the opinion in the appeal from the judgment in this case, the order should be modified in the same way as the judgment was therein directed to be modified. The objection made by the defendants to the order continuing the injunction seems to be that as the injunction was included in the interlocutory judgment at that time entered there was no occasion for an order continuing the injunction. The interlocutory judgment authorized the defendants to withdraw their demurrer and answer, and while it contained the injunction clause, the same as provided in effect in the order appealed from, some question might arise as to whether, if the demurrer had been withdrawn and an answer interposed, the interlocutory judgment would not become ineffective, and the injunction therein provided for fail. In any event, the continuance of the temporary in-' junction was provided for simply until the final judgment in the case, and, even if unnecessary by reason of the injunction contained in the interlocutory judgment, it could harm nothing, and should not be reversed. The order, therefore, continuing the injunction should be affirmed, and the order refusing to modify the same should be reversed, and the injunction modified as specified in the opinion, upon the appeal from the judgment. No costs allowed to either party. All concur.
