Opinion
March Term, 1901.
Richard Lockhart Hand, for the appellant.
Franklin A. Rowe, for the respondent.
An injunction order should be sufficiently definite and certain in stating what the party enjoined must do or refrain from doing so that it will not be necessary for the party enjoined to determine at his peril one or more of the principal issues to be tried in the action before deciding what, if anything, it is necessary to do in obedience to the order.
The court at Special Term in this case avoided passing upon conflicting affidavits or taking further means for determining preliminarily the controversy, and made an order that involves one of the principal issues for determination. The defendant cannot take down its wing dam without for the time being abandoning one of its defenses to the action and substantially admitting that all of the persons whose affidavits it has read have sworn falsely, and if it does not remove the wing dam, and it is finally determined that the plaintiff has a cause of action against the defendant, and that the wing dam does in fact cause the water to flow back on the plaintiff's premises, then it will be liable for a continued contempt of court in disobeying the order. Such an order is of no possible value to the plaintiff pending a determination of the controversy, and it places the defendant in unjustifiable jeopardy. This court has recently held that such an order should not be granted. ( St. Regis Paper Co. v. Santa Clara Co., 55 App. Div. 225.) It is unnecessary to consider the other questions raised on this appeal. Order reversed, with ten dollars costs and disbursements.
All concurred.
Order reversed, with ten dollars costs and disbursements.