Daniel P. Duryea, Respondent, v. Meyer Auerbach, Defendant, Impleaded with Mary E. Maxon, Appellant

Daniel P. Duryea, Respondent, v. Meyer Auerbach, Defendant, Impleaded with Mary E. Maxon, Appellant. Second Department, October 16, 1914. Injunction pendente lite — covenant not to use premises for sale of intoxicating liquors — defendant’s right to speedy trial — defenses. As a general rule the Appellate Division will not disturb an order granting an injunction pendente lite restraining the defendant from violating a covenant not to sell intoxicating liquors upon certain premises. But the plaintiff, having obtained such injunction, should be required to bring the cause to trial at the first possible moment, and if he should fail to do so, defendant should be allowed to move to vacate the order. A defense that the covenants have become inoperative and obsolete by reason of radical changes in the locality cannot be tried on affidavits unless the most cogent circumstances compel such course. Appeal by the defendant, Mary E. Maxon, from an order of the Supreme Court, made at the Nassau Special Term and entered in the office of the clerk of the county of Nassau on the 30th day of June, 1914. David M. Neuberger, for the appellant. Henry A. Uterhart [Alfred M. Schaffer with him on the brief], for the respondent. [MAJORITY — Per Curiam:] Per Curiam: This appeal is from an order of the Special Term that grants an injunction pendente lite restraining the defendants from selling malt or spirituous liquors on certain premises in violation of covenants contained in a deed executed in 1880 and continued in certain mesne conveyances. The defenses are that such covenants have become inoperative, unenforcible and obsolete by reason of the radical changes of the locality and neighborhood and of the conditions thereof, and waiver. The record indicates that this invocation of the doctrine of Trustees of Columbia College v. Thacher (87 N. Y. 311) will be the principal defense. Such an issue cannot well be tried by affidavits and should not be unless cogent circumstances almost compel such course. The general rule in this court is not to disturb this kind of an. order. (Smith & Sons Carpet Co, v. Ball, 137 App. Div. 101; Heim v. N. Y. Stock Exchange, 138 id. 96.) On the other hand, the plaintiff, having thus halted the defendants, should not be allowed to rest. And if he is not ready for trial at the first possible moment, the defendants should be heard for a vacation of this order, which is now affirmed, with ten dollars costs and disbursements. Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.