138 N.Y.S. 95 | N.Y. App. Div. | 1912
Section 16 of the Membership Corporations Law (Consol. Laws, chap. 35; Laws of 1909, chap. 40) provides that “All membership corporations with their books and vouchers shall be subject to the visitation and inspection of a justice of the Supreme Court or of any person appointed by the court for that purpose. If it appears to such court by the verified petition of a member or creditor of any such corporation that it or its directors, officers or agents have misappropriated any of the funds or property of the corporation, or diverted them from the purpose of its incorporation, or that it has acquired property in
Article 4 of said Membership Corporations Law is entitled ‘ ‘ Cemetery Corporations. ” Section 60 thereof provides: ‘ ‘ This article does not apply to cemeteries belonging to religious or municipal corporations.” The Pinelawn Cemetery does not belong to a religious or municipal corporation, and; therefore, the provisions of the statute seem to apply thereto.
We are of the opinion that the propriety of the order providing for a visitation and the taking of an account sufficiently appears from the moving papers. The order, however, contains an injunction. No provision of the Code of'Civil Proced
In Bachman v. Harrington (184 N. Y. 458) it is said: “It is well settled by repeated decisions of .this court that, in this State a court of equity has nó inherent absolute power to grant interlocutory injunctions, but that authority therefor must be found in the Code of Civil Procedure.” And in Matter of Dietz (138 App. Div. 283) this court said: “Under the Code there does not appear to be any warrant for the granting of a temporary injunction save in an action, * * * and the distinction between an action and a. special proceeding is clearly drawn. * * * The only exceptions of any kind to this rule, contained in the statutes and authorizing the issuance of an injunction Order, are to he found in the few isolated cases where an injunction is authorized in a special proceeding specifically named.” The court further stated: “And it may well be that there are instances where, in special proceedings brought for specified particular purposes /under the general powers of ¡the court, it would be authorized to issue a temporary staying order to insure the efficient execution of its final determination.” ’
The foregoing case and Woerishoffer v. North River Const. Co. (99 N. Y. 398) and Attorney-General v. Guardian Mut. Life Ins. Co. (77 id. 212) were relied upon. In the Woerishoffer case the court, referring to the order under -review, said: “ Its sole effect, as against the appellant, is to prevent a seizure under process, issued in its action, of assets already seized by the court, and held as well for the appellant’s benefit as for that of the other creditors. It operates to prevent the Iron and Steel Company from attaching or levying upon, for its own sole benefit, property already attached and levied upon by an equitable process for the benefit of all the creditors alike. It preserves every right and lien acquired before the appointment of the receiver by the attachment creditor, and the privilege and
power of the court to make that order, in a case where it had jurisdiction to appoint the receiver as a necessary incident of that appointment, cannot be successfully disputed.” And, speaking of Attorney-General v. Guardian Mut. Life Ins. Co. (77 N. Y. 272), the court further said: “ The order was not granted or defended as an injunction order, but as one within the jurisdiction of a court of equity in an action pending before it, and essential to the complete remedy which it was authorized by law to give.”
It does not seem to us that any of these cases authorize the injunction in the matter at bar. This is not an action; it is a mere investigation of existing conditions. Even if it be conceded that the court, under some possible circumstances, has the power to issue stays or other restraining orders in aid of its clearly authorized process, it seems to us that such power should not be exercised in a matter of this kind to the extent illustrated .by the order appealed from.
The order appealed from should, therefore, be modified by striking out the injunction provisions and as modified affirmed, without costs to either party.
Ingraham, P. J., Scott, Miller and Dowling, JJ., concurred.
Order modified as directed in opinion and as modified affirmed, without costs. Order to be settled on notice.