13 Abb. N. Cas. 144 | The Superior Court of New York City | 1883
Counsel on both sides have urged on me the importance of an early decision with so much earnestness that I comply with their request,
In my opinion, the plaintiff’s motion for an injunction should be denied.
First. The purpose of this action is to compel a specific performance by defendant of his contract to sing for the plaintiff. This court,has no power to compel defendant to sing ; or, if it have such power, it has never yet, as far as I am aware, been claimed by the court or putin force (De Rivafinoli v. Corsetti, 4 Paige, 264). As far, then, as plaintiff’s prayer for specific performance is concerned, he is not entitled to the judgment claimed in his complaint, and his action thus far fails.
Second. In connection with the plaintiff’s claim for this release by way of specific performance, and as ancillary thereto, he seeks to have the contract on which he sues reformed in certain important particulars, in which he avers that it does not truly express the actual agreement made between him and the defendant. The defendant, in his answer, and in various affidavits used in his behalf on the motion, denies that the contract is in these particulars defective, or that any reformation of it would be proper.
Third. The plaintiff, in his complaint, also prays judgment for a permanent injunction against the defendant to the same effect as that for which he now moves pendente lite. The granting of an injunction pendente Hie is always in the discretion of the court, and should be ordered with caution, and even with some reluctance, and only when the rights of the plaintiff on the law and the facts are clear, and the necessity for that form of equitable relief is manifest, in order to prevent a failure of justice. In the case at bar, a suf
Fourth. The negative clause in .this contract prohibits the defendant from singing in concerts, and does
Plaintiff’s motion is denied, with §10 costs.
In the case of Mapleson v. Lablache, Superior Court, Special Term, October, 1883, an injunction pendente lite, restraining defendant from singing for others, in violation of her contract to sing for ihc plaintiff, was denied, as the complaint did not aver that plaintiff would suffer irreparable injury from defendant’s refusal to sing for him, nor that he could not easily have procured an artist competent to fill defendant’s place.
Wm.. 3. Arnoux and Haley Fiske, for plaintiff.
Stephen E. Olin and George L. Bines, for defendant.
O’Goiíman, J.—The complaint does not aver that the plaintiff would suffer irreparable injury if the defendant does not sing for him; and the facts as they appear on the whole case before me on the pleadings and affidavits do not warrant such a conclusion.
It is scarcely possible that the plaintiff could not easily have procured an artist competent to fill the place of the defendant; and if she have broken her contract with him, the remedy which the law affords him in an action against her for damages wTould seem ample to enable him to recover compensation for such loss as he may have suffered.
In my opinion, there is nothing in the case to entitle Mm to an injunction pendente lite.
The motion on the part of the plaintiff is denied, with $10 cosis.