James J. Godfrey, Plaintiff, v. Antonia Baumer Matzene and Others, Defendants

Fourth Department, March, 1916. James J. Godfrey, Plaintiff, v. Antonia Baumer Matzene and Others, Defendants. . Application ex parte on behalf of Joseph G. Glass, as receiver, etc., to vacate a restraining order granted by the Supreme Court at chambers in Westchester county, dated March 3,1916, in an action pending in that court, enjoining the receiver and other named defendants in said action from taking any proceedings in another action pending in Onondaga county, entitled Matzene v. Godfrey, until the hearing and determination of the motion contained in the order here sought to be vacated. [MAJORITY — Per Curiam:] Per Curiam: The application ex parte to vacate the injunction should be denied. While the Appellate Division of this department may have power under section 626 of the Code of Civil Procedure to vacate and set aside without notice the injunction order (Matter of Porter, 30 App. Div-251), we think the power should not be exercised. It is not so clear that the papers upon which the order was granted do not make out a case for a temporary restraining order as to warrant setting aside the order summarily and without notice. This motion must be determined upon those papers alone. The order to show cause why the injunction should not be continued is returnable at Special Term to-morrow, at which time a full hearing may be had, and we cannot assume that that court will not make a proper disposition of the matter. All concurred, except Merrell, J., who dissented. Application denied.