Graham v. Board of Sup'rs, Erie County

• Decision Date: 02 November 1965
• Citation: 49 Misc.2d 459,267 N.Y.S.2d 383
• Parties: J. Barrie GRAHAM and Samuel Goldman, Plaintiffs, v. BOARD OF SUPERVISORS, ERIE COUNTY, New York, Arthur L. Carlsen, Lester S. Miller, Raymond P. Griffin, Luke C. Owens, Edward A. Rath, Common Council of the City of Buffalo, Board of Elections of Erie County, New York and All Persons Elected to the Board of Supervisors of Erie County, New York on
• Court: New York Supreme Court

Page 383

267 N.Y.S.2d 383

49 Misc.2d 459

J. Barrie GRAHAM and Samuel Goldman, Plaintiffs, v. BOARD OF SUPERVISORS, ERIE COUNTY, New York, Arthur L Carlsen, Lester S. Miller, Raymond P. Griffin, Luke C Owens, Edward A. Rath, Common Council of the City of Buffalo, Board of Elections of Erie County, New York and All Persons Elected to the Board of Supervisors of Erie County New York on November 2, 1965.

Supreme Court, Erie County.

Jan. 20, 1966.

[49 Misc.2d 460] Robert B. Fleming, Buffalo, for plaintiffs.

Norman A. Stiller, Erie County Atty., for defendants Board of Supervisors and others.

Harold F. Zaehringer, Buffalo, for defendant Raymond P. Griffin.

Anthony Manguso, Corp. Counsel (Abraham I. Okun, Asst. Corp. Counsel, of counsel), for Common Council of City of Buffalo.

WILLIAM B. LAWLESS, Justice.

Plaintiffs apply for temporary relief pending trial of an action seeking to declare unconstitutional the present apportionment of members of the Erie County Board of Supervisors. Defendants have not yet answered the complaint which was served on December 28th, 1965.

Plaintiffs seek a temporary order:

I. Providing that this Court shall forthwith undertake a constitutionally valid apportionment of the Board of Supervisors of Erie County II. enjoining mandatorily the defendant Board of Elections of Erie County to forthwith commence and inaugurate all procedures necessary and appropriate to bring on and make possible a special election on November 8th, 1966 for the election of supervisors in the County of Erie; and finally

appointing such Special Referee or Referees to aid it as it deems necessary, to be completed on or before March 8th, 1966, and to be made effective on and after March 15th, 1966, unless the defendant Board of Supervisors shall have carried out a constitutionally acceptable apportionment on or before March 8th, 1966; and further,

III. providing that this Court shall retain jurisdiction of this action and entertain an application by any of the parties for a review of any apportionment plan that the defendant Board of Supervisors may adopt, and for such other and further relief as shall be just and proper.

On the return of the motion, the Board of Supervisors of Erie County appeared and moved to dismiss the application for temporary relief, contending that Supreme Court has no jurisdiction to entertain what they characterized as a Motion for Summary Judgment since the issues in this action have not been joined and the time to answer or otherwise plead has not as yet expired. The Board of Supervisors addressed themselves solely to the timeliness of the application. The Court heard arguments on the Board's motion to dismiss plaintiff's application, reserved decision thereon and immediately thereafter heard argument by plaintiffs on their request for temporary relief. Counsel for the Board voluntarily withdrew and did not participate in the latter argument.

The City of Buffalo appeared and took the position that it does not oppose re-apportionment so long as the City of Buffalo retains at least 50% representation in the Erie County Board of Supervisors.

Defendant Raymond P. Griffin appeared, took no position with respect to the motion of the Board of Supervisors, but, on the principal argument, contended that the incumbent supervisors were elected for a two year term and therefore any court order reducing said term would be improper and void.

I.

We agree with the Board of Supervisors that plaintiffs are not entitled to summary judgment prior to the joinder of issue herein. CPLR Rule 3212 expressly states that such a motion may be brought only after issue has been joined. However, the motion before us is an application for temporary equitable relief and a preliminary mandatory injunction under CPLR § 6301 which provides:

A preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation Although the title of the CPLR mentions only a 'preliminary injunction' and 'temporary restraining order', the text authorizes this Court to issue an order where it appears that the defendant is doing or procuring or suffering to be done an act in violation of the plaintiff's rights respecting the subject of the action, and 'tending to render the judgment ineffectual'.

of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual, or in any action where the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed, or continued during the pendency of the action, would produce injury to the plaintiff. A temporary restraining order may be granted pending a hearing for a preliminary injunction where it appears that immediate and irreparable injury, loss or damage will result unless the [49 Misc.2d 462] defendant is restrained before the hearing can be had.' (italics added)

It is fundamental that an injunction may be used either to restrain or to compel the performance of an act. An injunction of the former type is called a prohibitory or negative injunction, whereas an order compelling performance is referred to as an affirmative or mandatory injunction. Historically, the prohibitory injunction was the earliest form of judicial restraint imposed upon parties. However, this should not obscure the fact that a Court's power to issue a mandatory injunction is well-established and has a long history. See Weinstein-Korn-Miller, New York Civil Practice, p6301.06; Rolls v. Miller [(1640, 15 Chas. I) Tothill's Rep. 144]; Klein, Mandatory Injunctions, 12 Harv.L.Rev. 95, 103 (1898); See also Note, Mandatory Injunctions as Substitutes for Writs of Mandamus in the Federal District Courts; A Study in Procedural Manipulation, 38 Colum.L.Rev. 903 (1938).

Obviously, there are situations in which a mandatory injunction will be necessary to preserve the status quo or to prevent irreparable injury to the plaintiff. (Bachman v. Harrington, 184 N.Y. 458, 77 N.E. 657; Engelhardt v. Fessia, 31 Misc.2d 127, 219 N.Y.S.2d 631; Veal v. Scheiner, 18 Misc.2d 962, 187 N.Y.S.2d 444; Sterling v. Brahms, 10 Misc.2d 958, 170 N.Y.S.2d 112; Mastantuono v. Schurachio, Sup., 82 N.Y.S.2d 129, affd. wo. opin. 274 App.Div. 908, 84 N.Y.S.2d 709 (2d Dept. 1948). See also Peterfreund, Annual Survey of New York Law Civil Practice, 34 NYUL.Rev. 1563, 1583 [1959]; 1 Beach Injunctions, §§ 97-104 [1895]; 4 Pomeroy, Equity Jurisprudence §§ 1359-a, 5th Ed. 1941).

As stated by the Federal Court in Toledo, A. A. and N. M. Ry. Co. v. Pennsylvania Co., 54 F. 730, 741, 19 L.R.A. 387 (C.C.N.D.Ohio 1893):

'* * * [I]t sometimes happens that the status quo is a condition not of rest, but of action, and the condition of rest is exactly what will inflict the irreparable injury upon complainant, which he appeals to a court of equity to protect him from. In such a case courts of equity issue mandatory writs before the case is heard on its merits.' (italics added).

In such circumstances as described above, 'there should be no hesitancy about granting a request for a mandatory preliminary injunction whenever a need for one is shown.' 7 Weinstein-Korn-Miller, N.Y.Civil Practice, p6301.06, p. 63-14. See also Annot., Mandatory Injunctions Prior to Hearing of Case, 15 A.L.R.2d 213 [1951], Annot. Interlocutory Mandatory Injunction, 32 A.L.R. 894 [1924].

While it is true that the preliminary order sought by the plaintiffs will provide the same temporary relief as the ultimate relief sought, this fact alone does not defeat the motion. Obviously, a Court has no power to issue a permanent injunction in advance of trial. (Oppenheim v. Thanasoulis, 123 App.Div. 494, 108 N.Y.S. 505 [First Dept.1908]). However, the issuance of a preliminary injunction frequently does have the same effect as the granting of the permanent relief requested by a plaintiff.

In the absence of showing a substantial need for temporary relief, the courts have been slow to grant preliminary relief that will dispose of the entire action for all practical purposes. (Yome v. Gorman, 242 N.Y. 395, 152 N.E. 126, 47 A.L.R. 1165 [1926]). The reluctance on the part of courts to grant a motion for prelininary relief that will have the same effect as ultimate relief is based upon a desire to decide litigation only after a full hearing on the merits and a fear that issuing the order might affect the parties during the action in such a way as to render any final judgment nugatory. However, there are situations in which the plaintiff should be granted a preliminary order in spite of the fact that it may have the effect of a permanent injunction. Weinstein-Korn-Miller, N.Y.Civil Practice, p 6301.17. One such situation is where the plaintiff demonstrates a clear right to permanent relief on the motion for preliminary relief. Thus, if prior litigation has established the plaintiff's right to a permanent order, he should be granted a preliminary order even though it affords him the same relief as would a permanent order. (Mastantuono v. Scurachio, Sup., 82 N.Y.S.2d 129, affd. wo. opin. 274 App.Div. 908, 84 N.Y.S.2d 709.) In effect, the Court in such cases grants summary judgment by granting the preliminary order. See Rose v. Brown, 186 Misc. 553, 58 N.Y.S.2d 654 (Sup.Ct.1945) wherein the Court issued a mandatory preliminary injunction 'A temporary injunction, which grants all the relief that can be obtained by a party at the end of a litigation, is never granted unless it be made to appear clearly to the court that the plaintiff's contention is right in the main, and that his rights would be seriously injured by permitting the defendant to proceed as he is attempting or threatening to do. * * *' (italics added)

directing specific performance of a contract, which court action had the effect of giving the plaintiff all the relief he had sought in the...