Jameson v. Hartford Fire Insurance , 44 N.Y.S. 15 ( 1897 )

Rumsey, J. (con cuning) :

I concur with the majority of the court, that the order appealed from should be reversed; but I put my concurrence solely upon the ground that substantially all the acts enjoined were practically completed before the granting of the injunction, and the injunction amounts simply to an eviction of the Hartford Fire Insurance. Company from the premises it occupies and to. a command to them to restore that which they had already received and are holding under the contract.

It is purely a mandatory injunction in all its essentials. Such an injunction should rarely, if ever, be granted pendente lite, and the granting of such an injunction in this case was not, as it seems to me, a proper exercise of the discretion of the court. This ground is sufficient to require the reversal of the order.

The other questions are so important in their nature that, in my judgment, they ought not to be decided upon a motion which appeals purely to the discretion of the court, since the decision upon such a motion cannot be reviewed. ■