Opinion
July Term, 1902.
William G. Tracy, for the appellant.
C.L. Stone, for the respondent.
The granting or refusing of an injunction pendente lite rests in the sound discretion of the court of original jurisdiction; and the order of that court will not ordinarily be reversed upon appeal, unless it is made clearly to appear that there has been an abuse of such discretion. ( Hessler v. Schafer, 82 Hun, 199; Pratt v. N.Y.C. H.R.R.R. Co., 90 id. 83; Johnston v. Phœnix Bridge Co., 44 App. Div. 581.)
It is true that this rule is not inflexible; on the contrary, an appeal from such an order will sometimes be considered where the order virtually disposes of the merits of the controversy; but even in such a case the right of the appellant to the relief sought must be so clear as to enable the court to say with some degree of certainty that the court below erred in granting or refusing it.
Such is not this case, however, for the affidavits read upon the original motion, taken in connection with the allegations of the complaint, fall quite short of satisfying us that the plaintiff has established its right to the extraordinary remedy which it seeks to avail itself of in this action. Indeed, after a careful perusal of the record before us, it is difficult to determine just where the merits of the controversy reside, and in these circumstances we do not feel that the questions involved can be satisfactorily determined until the issues of fact have been decided in the usual manner.
In a very similar case this court held that it ought not and would not attempt to define and settle the ultimate rights of litigants upon affidavits ( Warsaw Water Works Co. v. Warsaw, 4 App. Div. 509; see, also, Washington Lighting Co. v. Dimmick, 41 id. 596); and such a rule seems especially applicable to the present case, inasmuch as the answering and replying affidavits are decidedly contradictory and the good faith of both parties is challenged.
The order should be affirmed, with ten dollars costs and disbursements.
McLENNAN, SPRING, WILLIAMS and HISCOCK, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.