Dolores Rupert, Respondent, v. Philip D. Rupert, Jr., Appellant

Dolores Rupert, Respondent, v Philip D. Rupert, Jr., Appellant. (Appeal No. 2.) [MAJORITY] — Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: A preliminary injunction should not be granted where the right to ultimate relief in the action is in doubt (12 Carmody-Wait 2d, NY Prac § 78:7). Nor should it be granted unless there is a showing that some act is being done or is threatened and imminent that will be destructive of such right (12 Carmody-Wait 2d, NY Prac § 78:18). Thus, absent a showing that the antenuptial agreement was invalid and that defendant was about to dissipate his assets, the court should not have enjoined defendant from disposing of his separate property. The order appealed from is modified, therefore, by deleting the provision restraining defendant from disposing of his separate property. (Appeal from Order of Supreme Court, Monroe County, Curran, J. — Preliminary Injunction.) Present — Boomer, J. P., Pine, Lawton and Fallon, JJ.