H. H. Poultry Corp. of N.Y. v. Thorman Baum

Full title: H. H. POULTRY CORP. OF N.Y. et al., Respondents, v. THORMAN BAUM CO.…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: May 10, 1948

273 App. Div. 995 (N.Y. App. Div. 1948)

Opinion

May 10, 1948.

Present — Peck, P.J., Glennon, Cohn, Callahan and Shientag, JJ.;

In view of the fact that a denial of the motion for a temporary injunction would have rendered futile a trial of the issues of law and fact involved, the injunction pendente lite was properly granted by the Special Term. The order accordingly is affirmed, with $20 costs and disbursements to the respondents.

Peck, P.J., dissents in a memorandum as follows:

I dissent on three grounds: (1) that plaintiffs' moving papers make no such clear showing as to entitle them to a preliminary injunction, (2) that the complaint fails to state a cause of action ( Crouse v. McVickar, 207 N.Y. 213; David v. Fayman, 273 App. Div. 408), and (3) that any cause of action would have to rest on section 8 of the Commercial Rent Law (L. 1945, ch. 3, as amd.), which affords and defines the cause of action for its violation and provides the specific remedy. The order appealed from should be reversed and the motion denied. Settle order on notice fixing an early date for trial.