Opinion
August 21, 1934.
Wolfango E. Cribari, for the plaintiffs.
Hays, Wolf, Kaufman Schwabacher [ Wolfgang S. Schwabacher and Hyman N. Glickstein of counsel], for the defendant.
Careful study of the voluminous affidavits and of the excellent brief submitted convinces me that it would be an improper exercise of the court's discretion (Civ. Prac. Act, § 882) to grant, at plaintiffs' instance, an injunction pendente lite in this case for the following reasons, among others which might be given:
(1) The granting of the application would give to the plaintiffs now all the relief which would be accorded to them if successful at the trial characterized by the important incidents of direct and cross-examination; and to grant it would not be proper in view of the defendant's denial under oath of the plaintiffs' claimed equities and of the substantial dispute presented as to plaintiffs' right to any injunction, temporary or final. (See Maloney v. Katzenstein, 135 A.D. 224, 225, 226; Newgold v. Childs Co., 148 id. 153; Lakes Island Realty Co. v. McDermott, 96 Misc. 37; Byrnes v. Kaufwein Realty Co., Inc., 206 A.D. 306; McGuire v. Blumingdale, 8 Misc. 478.)
(2) The award to plaintiffs of the desired and drastic relief asked upon the motion would bear more heavily on the defendant with its considerable investment and business which has been conducted for many years, than would the denial of the injunction upon the plaintiffs. ( Maloney v. Katzenstein, supra, 226; Byrnes v. Kaufwein Realty Co., Inc., supra, 308; Lakes Island Realty Co. v. McDermott, supra, 41; McGuire v. Blumingdale, supra, 478.)
(3) Plaintiffs' alleged grievances have existed for such a lengthy period before the commencement of the action that immediate relief to the plaintiffs is not requisite. (See Byrnes v. Kaufwein Realty Co., Inc., supra, 308; McGuire v. Blumingdale, supra, 479.) (Examine, also, Metzger v. Knox, 77 Misc. 271; affd., 153 A.D. 911.)
Other considerations undoubtedly militate against the granting of the motion, but those stated will suffice. In connection with the preparation of the issues for trial please read my memorandum in Demuro v. Hvranek ( 153 Misc. 187).
No intimation as to the merits of the controversy herein is implicit in this memorandum. That controversy will be decided after the more searching processes of a trial of the issues.
Plaintiffs' motion for injunction pendente lite is denied, but without costs. Settle order on notice.