190 A.D. 176 | N.Y. App. Div. | 1919
The defendant, Robert H. Reid, appeals from an order denying a motion made by him to permanently enjoin and restrain the plaintiff and the sheriff of Westchester county from arresting said Robert H. Reid -under any execution upon the judgment in this action. The plaintiff has taken all the necessary steps and the judgment warrants an execution against defendant’s person. Such an execution has been issued, the defendant has been arrested and has been released from the arrest upon giving an undertaking to surrender himself to the sheriff of Westchester county and entering into a stipulation whereby he waived all objections and defenses because of the consent of plaintiff’s attorney to said temporary release, and agreed to surrender to the said sheriff on demand, under the body execution upon which he is now confined as aforesaid, or a new execution, and expressly agreed that the right of the plaintiff to cause his arrest under
The first question that presents itself is one of procedure — is the defendant entitled to injunctive relief ? The defendant calls our attention to no authority supporting the affirmative of that proposition. He cites one case (Green v. Young, 48 N. Y. St. Repr. 571) in which such an injunction is granted, but the question of the propriety of injunctive relief is not discussed in the opinion of the court in that case. An examination of several textbooks upon the subject of injunction fails to show any discussion whatever on this subject. In Joyce on Injunctions (§ 59) it is said that an injunction will not be granted in the case of an illegal arrest, the proper remedy for such an injury being either an action for damages or by habeas corpus, citing Fincke v. Police Commissioners (66 How. Pr. 318) and Murphy v. Board of Police of N. Y. (11 Abb. N. C. 337). It is true that the cases cited have reference to an arrest upon a criminal charge,' but I see no distinction as to the remedy for an illegal arrest upon civil process or upon a warrant in a criminal proceeding. In Savage v. Sully (168 App. Div. 131), which was a similar proceeding, Mr. Justice Latjghlin placed his concurrence in the reversal of an order granting relief similar to that here prayed for, “ on the ground that the defendant is not entitled to injunctive relief.” The Code of Civil Procedure does not provide for such an injunction. (Code Civ. Proc. § 602 et seq.) A temporary injunction is to preserve the status during the action, and a permanent injunction is the result of the action and is contained in the judgment of the court. The injunction here sought is a permanent injunction, but is not the result of the trial of any action and the decision of the court thereon. The procedure adopted by the defendant herein is, therefore, without authority of law.
If the defendant’s procedure be assumed to be correct, I still think he is not entitled to the relief prayed for. Two authorities upon this proposition are cited. They are the cases which have already been cited herein (Green v. Young, supra, and Savage v. Sully, supra). The first of these is a Special Term decision of the Superior Court of the City of Buffalo. In that case the defendant had been taken upon
The order appealed from should be affirmed, with ten dollars costs and disbursements.
Jenks, P. J., Rich, Putnam and Blackmar, JJ., concur.
Order affirmed, with ten dollars costs and disbursements.