Divorce Lawyers New York - Code of Civil Procedure Cases
Code of Civil Procedure Cases
The trial court must conclude that the need for temporary relief outweighs the possible detriment to the defendant. Donald McElroy, Inc. v. Delaney.
While ordinarily the continuance or dissolution of a temporary injunction rests in the discretion of the court, and the court is vested with great discretion in deciding such matters, the court must properly apply equitable rules and fairly weigh the facts in deciding whether the plaintiff is entitled to the extraordinary relief of an injunction. Eads Coal Co. v. UMW of Am.
If it appears from the facts that the issuance of the temporary injunction without notice was not warranted, then it would be the duty of the appellate court to reverse the order overruling the motion to dissolve the injunction. American Dixie Shops, Inc. v. Springfield Lords, Inc.
Where a preliminary injunction was issued without notice, in a case where a notice should have been given, it was the duty of the appellate court, aside from any other question and without reference to the merits of the case as made by the averments of the complaint, to reverse the order denying the motion to dissolve the injunction upon that ground. Crown Bldg. Corp. v. Monroe Amusement Corp.
An injunction is an extraordinary remedy requiring urgent and extreme circumstances before it may be issued without notice. Board of Educ. v. Parlor.
The fact that the plaintiff filed his complaint on a Thursday, but did not present its motion for an emergency injunction until the following Monday, did not negate the allegation that the emergency existed and that it would be unduly prejudiced if the injunction would be not issued without notice, since the plaintiff presented the motion on the second court date following the filing of the complaint. Sunset Hills Homeowners Ass’n v. Karel.
Where the exigency is genuine and not feigned, the danger imminent and not remote, the injury real and not imaginary, an injunction may issue without notice. Streamwood Home Bldrs., Inc. v. Brolin.
Every case determining whether injunction without notice should issue must rest upon its own facts, and if the chancellor’s discretion is reasonably exercised it will not be interfered with by a court of review. Streamwood Home Bldrs., Inc. v. Brolin.
In action by a partner against co-partner to vacate the temporary injunction, and to discharge the receiver, the partner had not made a sufficient showing to warrant issuance of a temporary injunction, or appointing a receiver without notice to the co-partner. Pearson v. Behrens.
