Finger v. City of Kingston
New York Supreme Court
Appeal from special term, Albany county. Action by William L. Finger against the city of Kingston to enjoin it from discharging its sewage into a creek below plaintiff’s ice-pond. Defendant appeals from an order granting a preliminary injunction, and also from an order denying a motion to strike out certain allegations of the complaiut.
1Opinion of the CourtLandon, J.
The preliminary injunction was granted upon notice andi upon consideration oí the affidavits submitted by each party. When the right to an injunction depends upon the nature of the action, it is indispensable that the complaint show that the plaintiff is entitled to judgment awarding-the injunction. Code, § 603. But it would be idle for the defendant to contest the motion upon affidavits upon his part, if the test of decision is whether the complaint shows a prima facie case entitling the plaintiff to judgment awarding the injunction. The test must be, what does sound discretion require upon…
Also in this document: Concurrence · Learned; Concurrence · Learned.
2Cited by2 opinions
- Hatch v. MatthewsNew York Supreme Court · 1895
- Town of Dunkirk v. Lake Shore & Michigan Southern Railway Co.New York Supreme Court · 1894