Duryea v. Auerbach

149 N.Y.S. 432 | N.Y. App. Div. | 1914

Per Curiam:

This appeal is from an order of the Special Term that grants an injunction pendente lite restraining the defendants from selling malt or spirituous liquors on certain premises in violation of covenants contained in a deed executed in 1880 and continued in certain mesne conveyances. The defenses are that such covenants have become inoperative, unenforcible and obsolete by reason of the radical changes of the locality and neighborhood and of the conditions thereof, and waiver. The record indicates that this invocation of the doctrine of Trustees of Columbia College v. Thacher (87 N. Y. 311) will be the principal defense. Such an issue cannot well be tried by affidavits and should not be unless cogent circumstances almost compel such course. The general rule in this court is not to disturb this kind of an. order. (Smith & Sons Carpet Co, v. Ball, 137 App. Div. 101; Heim v. N. Y. Stock Exchange, 138 id. 96.) On the other hand, the plaintiff, having thus halted the defendants, should not be allowed to rest. And if he is not ready for trial at the first possible moment, the defendants should be heard for a vacation of this order, which is now affirmed, with ten dollars costs and disbursements.

Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.