10 A.D.2d 922 | N.Y. App. Div. | 1960
Order unanimously reversed on the law, on the facts and in the exercise of discretion, with $2.0 costs and disbursements to the appellant, and the motion for a temporary injunction is denied, with $10 costs. The plaintiff has not made the requisite showing to establish that he has a clear legal right to the injunction sought. A temporary injunction should not be granted unless the plaintiff shows a clear legal right thereto and, in addition, shows that he would be irreparably damaged if an injunction were not granted before trial. The defenses of unclean hands, loches, and the absence of the maintenance of a fair-trade price structure in the vicinity where it is sought to be enforced are strongly supported by defendant’s affidavits and preclude the granting of a temporary injunction. Moreover, it appears that the defendant, to the knowledge of the plaintiff, had been selling merchandise below fair-trade prices openly for more than two years before this action was commenced. In such circumstances the plaintiff should not be granted an injunction before the issues are tried. Concur — Breitel, J. P., Rabin, M. M. Frank, Stevens and Bastow, JJ.