De Wick v. Dobson

46 N.Y.S. 390 | N.Y. App. Div. | 1897

Willard Bartlett, J. :

This is a libel suit in which a preliminary injunction has been granted to restrain the further publication, of the alleged libels during the pendency of the action. The litigation appears to be a controversy between rival instructors in a branch of instrumental music, and the matter of which the plaintifEs' complain was pub- ■ lished asan advertisement in a New York newspaper. The eomplaint is in the ordinary form of. a complaint in an action at, law to recover damages for the publication of a libel,, with the addition of an allegation that .the defendant intends to continue the publication of the same or lilce advertisements, and being wholly irresponsible will thus inflict great injury upon' the plaintiffs. In their prayer for relief the plaintiffs, also ask for an injunction as‘well as damages-, to the amount of $5,000.

■ The order appealed from is not in accord with the principles of American equity jurisprudence and is opposed to the weight of judicial authority in this State and country' The power of courts-of equity to interfere by injunction to restrain the -publication of a libel affecting either person or property was most -fully and carefully considered by the late.Mr. Justice Bradley of- the 'Supreme - Court of -the United States, while sitting: in the Circuit Court 'for the eastern district of Pennsylvania, in the case of Kidd v. Horry (28 Fed. Rep. 773), and his opinion contains a clear and comprehensive review of the whole subject, in which all the more important decisions are examined and'which leaves, nothing to'add in the way of useful discussion. He points out that the recent English authorities upholding the practice of - issuing injunctions in cases of libel are based upon peculiar acts of Parliament, including the Judicature Act, but declares that neither the statute law of tiffs country,, nor any well-considered judgment of the courts has introduced this new branch of-equity into our jurisprudence.”

We fully concur in the conclusion thus stated by Mr. Justice Bradley,-which is supported by the New York, cases of Brandreth v. Lance (8 Paige, 24) and The N. Y. Juvenile Guardian Society v. Roosevelt (7 Daly, 188), as well as by the authorities cited in his opinion from the reports of other States: -This - view of the law is fatal to the order of the Special Term.

Order reversed, with ten dollars costs and disbursements, and injunction dissolved.. ■

All concurred.

Order reversed, with ten dollars costs and disbursements* 'and motion denied, with ten dollars costs.