Rufus Hatch, Respondent, v. The Western Union Telegraph Company, Appellant; William S. Williams, Respondent, v. The Western Union Telegraph Company, Appellant

Rufus Hatch, Respondent, v. The Western Union Telegraph Company, Appellant. William S. Williams, Respondent, v. The Western Union Telegraph Company, Appellant. (Submitted January 15, 1883 ; decided October 2, 1883.) These were appeals from orders of General Term affirming orders of Special Term granting preliminary injunctions in the actions above entitled. The mem. of opinion is as follows: “ The orders in these cases are not appealable. The rule is well settled that the granting or refusing of an injunction pendente lite is in the discretion of the court of original jurisdiction, subject-to review by the General Term, which is the final appellate jurisdiction. ( Van Dewater v. Kelsey, 1 Comst. 533; Paul v. Munger, 47 N. Y. 469; Calkin v. Manhattan Oil Co., 65 id. 557.) “ There is an exception where it plainly appears upon the face of the complaint that the case is one in which, by settled adjudications, the plaintiff, upon the facts stated, is not entitled to final relief. The granting of an injunction pendente lite in such a case is error of law which may be reviewed in this court. (McHenry v. Jewett, 90 N. Y. 58.) The orders in these cases are not within the exception. The General Term, on appeal from the judgments of the Special Term in these actions, decided that the $15,529.90 of stock issued to the stockholders of «the corporation defendant was illegally issued and was a distribution of capital stock in contravention of the statute, and reversed the judgments of the Special Term which affirmed the validity of the issue. From the orders of reversal, appeals are now pending in this court. The respective counsel have presented elaborate briefs on these appeals from the injunction orders on the one side in support of the construction of the statute given by the General Term, and on the other to maintain the proposition that the statute relied upon is inapplicable, and that assuming it to apply, the remedy by injunction is inappropriate. Under the circumstances, whatever - conclusion may finally be reached on the merits, it cannot be said that the case is a plain one upon the face of the complaint against the right of the plaintiff to the relief sought, and it would be improper in this incidental proceeding to consider the merits and in effect determine the controversy. ʽʽ The appeals should, therefore, be dismissed.” A. J. Vanderpoel, Wager Swayne and William M. Evarts for appellant. A. P. Whitehead, R. W. Russell, John Sessions and Robert Sewell for respondents. For report of decision on appeals from orders of reversal, see ante, p. 162. [MAJORITY — Andrews, J.,] Andrews, J., reads mem. for dismissal of appeals. All concur. Appeals dismissed.