Opinion
May, 1932.
Order reversed upon the law, with ten dollars costs and disbursements, and motion to vacate and set aside the preliminary injunction contained in the order to show cause granted, without costs. We are of opinion that the notice contemplated by section 882 of the Civil Practice Act, as amended by Laws of 1930, chapter 378, in effect September first, is a formal notice of the application in the action pending, or if the action be not pending, bearing the title of the action to be brought, either with or without the papers upon which the application is based, returnable forthwith or at such other time as the judge or court may direct, in the discretion of the court or judge, the exercise of such discretion and the service of the notice to be incorporated in an order by the court or judge, a copy of which order is to be served with the notice. Lazansky, P.J., Hagarty and Carswell, JJ., concur; Davis, J., dissents and votes to affirm on the ground that though the practice here suggested may be preferable that, adopted by the Special Term was permissible; Kapper, J., concurs with Davis, J.
Amd. by Laws of 1931, chap. 387, effective April 13, 1931. — [REP.