Opinion
November 9, 1959
In an action to enjoin summer activities on certain premises alleged to be in violation of a zoning ordinance, the appeal is from an order granting a motion for an injunction pendente lite. Order affirmed, without costs, and without prejudice to an application to vacate the order if the action be not moved promptly for trial. This determination is based, not on the merits of the controversy, which have not been considered, but on the well-settled principle that, save in exceptional cases, an appellate court will not interfere with the discretion of the Special Term in granting or refusing an injunction pendente lite but will await the determination of the facts by the trial court after a plenary trial ( Horsfall v. Schuler, 217 App. Div. 146; Duryea v. Auerbach, 164 App. Div. 44). In this case there is no reason for departing from the general rule, especially since the 1959 summer season has ended and a resolution of the conflicting issues of fact may be had upon a plenary trial long before the 1960 summer season begins. Nolan, P.J., Beldock, Murphy, Ughetta and Kleinfeld. JJ., concur.