May 29, 1961
Order entered on January 19, 1961, which granted plaintiff's motion for an injunction pendente lite, unanimously affirmed, on the law, on the facts and in the exercise of discretion, with $20 costs and disbursements to the respondent. This is a companion proceeding to Tenney v. Liberty News Distrs. (Case No. 9). Since the court is unanimously of the opinion that the order appealed from should be affirmed, and because of the nature and present stage of the proceeding, in the ordinary case we would not feel compelled to write thereon. However, the appellants point out and protest the fact that an ex parte injunction was contained in the show cause order issued originally. While it may be, as the respondent contends, that the propriety or validity of that stay has become moot, having been superseded by the temporary injunction, we are of the view that section 22-a of the Code of Criminal Procedure does not authorize the issuance of an ex parte injunction. That section provides for an expeditious determination of the issues, and even a temporary injunction under section 22-a should issue only after both sides have had an opportunity to be heard. This observation is merely for the future guidance of the interested parties.
Concur — Botein, P.J., Breitel, Stevens, Eager and Bergan, JJ. [ 27 Misc.2d 692.]