9 Paige Ch. 504 | New York Court of Chancery | 1842
The vice-chancellor erred in refusing to permit the defendant to read affidavits in opposition to the application for the injunction. Where a preliminary injunction is granted absolutely in the first instance, and the defendant asks to have it dissolved upon the ground that the whole equity of the bill is denied by the answer, it is not the practice to allow him to read affidavits in support of his answer, except in those cases where the answer itself is not conclusive, under the last clause of the 37th rule. But where the complainant is directed to give notice of his application for an injunction, or where the defendant is required to show cause why a preliminary injunction should not be granted, whether a temporary injunction is or is not allowed in the meantime, the defendant has a perfect right to introduce his own or any other affidavits for the purpose of showing that the injunction should not be granted as asked for. And he may use such affidavits, in a case of that kind, although he has put in his answer denying the whole equity of the complainant’s bill; or has neglected to answer the bill fully, so that his answer is liable to exceptions for insufficiency. For upon an order to show cause why an injunction should not be granted, the answer, if put in, is only used as a sworn statement or affidavit, on the part of the defendant, in opposition to the complainant’s application.
Whether this is a proper case for the interference of this court by injunction, even if the complainants are right in their construction of the village charter, is a question which it is not necessary now to determine. For I am satisfied, from an examination of the provisions of the statute, that the street commissioner of the second ward was the proper officer to superintend the building of the bridge, and to make contracts for the work and materials therefor, subject, however, to the ratification of the trustees. This
Where the street commissioner neglects his duty, however, by refusing to superintend the improvement, and to make it in the manner previously directed by the trustees, or neglects to make contracts for the labor and materials and to lay them before the board of trustees for their approval, the remedy is by an indictment, for a neglect of his duty in this respect, or by an application to the su
Being satisfied that the claim of the trustees to contract for the work and materials and to assume the exclusive control of the building of this bridge themselves, cannot be sustained, and that there were no sufficient grounds for the interference of this court by injunction, the order appealed from must be reversed. And the order to show cause must be dismissed with costs to be taxed, including the costs on this appeal; and the temporary injunction must be dissolved.