4 Paige Ch. 439 | New York Court of Chancery | 1834
There was a technical irregularity in this case, in serving the defendant with the injunction without taking out and serving him, at the same time, with a subpee
Exceptions to the answer for insufficiency being duly filed, within the time prescribed in the 38fh rule, it was not in order to make the motion to dissolve the injunction on bill and answer, until after the time for procuring the master’s report had expired. But if the vice chancellor was satisfied that the exceptions were put in for delay merely, he should have modified the injunction so as to have permitted the defendant to proceed to trial and judgment only, and without prejudice to the equitable rights of the complainant. There was sufficient equity, on the face of the bill, to sustain the injunction original!}' ; and, as all the other grounds for the absolute dissolution thereof failed, the order of the vice chancellor, which is appealed from, was erroneous. It must, therefore, be reversed, with the costs of this appeal; and the defendant must refund to the complainant the costs which have been received under that order.
I see no valid objection, however, to a modification of the injunction, so far as to permit the defendant to proceed to trial and judgment in his suit at law, if he thinks proper to