City of New York v. Brenwill Realty Corp. , 23 A.D.2d 647 ( 1965 )

Order, entered on December 7, 1964, to the extent appealed from, unanimously reversed, on the law, with $30 costs and disbursements to the appellant, and provision directing the ease be placed on the calendar for a day certain vacated. Upon an application for a temporary injunction, the rules specifically provide that an immediate trial can be ordered only on consent of the parties (Supreme Court, Appellate Division, First Dept. Rules, part I, rule VIII, subd. [e] ; Landau V. Landau, 22 A D 2d 868; City of New York v. Wang, 23 A D 2d 481). The device of providing for an early trial should not be employed as a substitute for deciding the application for an injunction on its merits. Costs are allowed against respondent even though respondent did not urge this disposition at Special Term. Respondent could and should have consented to the modification requested and have had the order corrected at Special Term, thus overriding the necessity of an appeal. Concur — Botein, P. J., Breitel, McNally, Stevens and Steuer, JJ.