Strasser v. Moonelis

• Decision Date: 06 March 1888
• Citation: 15 N.E. 730,108 N.Y. 611
• Parties: STRASSER et al. v. MOONELIS.
• Court: New York Court of Appeals Court of Appeals

108 N.Y. 611

15 N.E. 730

STRASSER et al.

v.MOONELIS.

Court of Appeals of New York.

March 6, 1888.

Appeal from general term, superior court, city of New York.

Lewis Johnston, for appellant.

Antonio Knauth, for respondent.

RUGER, C. J.

The defendant appeals from an order of the general term of the superior court of New York affirming an order of the special term enjoining the defendant from attaching to or using certain labels, or imitations thereof, upon boxes containing cigars manufactured and sold by him. The order was granted, upon the pleadings and affidavits, presenting a controverted state of facts, and, so far as the question depends upon such facts, we must assume that the court below proceeded upon the theory that the plaintiff's version was correct. Upon this assumption, it is quite clear that the order was discretionary, and not appealable to this court. We have repeatedly held that the granting, continuing, or dissolving of a temporary injunction is within the discretion of the court of original jurisdiction, and that its determination cannot be reviewed here. Pfohl v. Sampson, 59 N. Y. 176;Brown v. Cheese Ass'n, 59 N. Y. 242;Van Dewater v. Kelsey, 1 N. Y. 533;Paul v. Munger, 47 N. Y. 469;People v. Schoonmaker, 50 N. Y. 493. In the case, however, of McHenry v. Jewett, 99 N. Y. 60, this rule was so far departed from, it was held that when it clearly appeared from the complaint that the plaintiff could not in any point of view be entitled to the final relief of injunction as demanded therein, that a temporary injunction was unauthorized, and this court would in that case review an order for an injunction pendente lite. With this single exception, the decisions in this court have been uniform to the effect that it will not review orders of this character. We have examined with some care the complaint in this action, and are not prepared to say, as matter of law, that a case may not be proved under its allegations entitling plaintiffs to some portionof the relief sought. A material fact bearing upon the right of the plaintiffs to final relief appears to be the force and effect to be ascribed to the allegation that the plaintiffs are ‘cigar-makers,’ and whether that phrase imports an ownership of the cigars thus made, or permits the inference that they are never such owners. The implied allegation of ownership is controverted in the answer by a denial of any proprietary interest by the plaintiffs in the cigars thus made, and an...