Kershnar v. Heller

Motion of respondents for reargument referred to court that rendered the decision on the appeal. Present — Lazansky, P. J., Carswell, Johnston, Adel and Close, JJ. Motion for reargument granted and on reargument the decision of this court handed down on October 31, 1939 [ante, p. 751], is amended to read as follows: Action for a permanent injunction and for a money judgment for damages to plaintiffs’ business. Defendant appeals from an order granting plaintiffs’ motion for an injunction pendente lite and denying defendant’s cross-motion to dismiss the plaintiffs’ complaint. Order modified by striking out the provisions thereof which grant the motion for a temporary injunction and in place thereof inserting a provision denying the motion for said injunction; and, as thus modified, the order is affirmed, with ten dollars costs and $300 disbursements to appellant, with leave to appellant to answer within five days from the entry of the order hereon. T'he plaintiffs are conducting their business in violation of the Sanitary Code of the City of New York (§§ 19, 321, 325). This decision is without prejudice to a renewal of the application for a temporary injunction if defendant does not serve an answer, as above permitted, *805and take steps to proceed to trial within ten days from the entry of the order hereon. (Kings County Special Term Rules, rule 13, ¶ a.) There should be an immediate trial so that the bona fides of the partnership may be determined as a question of fact. Lazansky, P. J., Hagarty, Carswell, Adel and Close, JJ., concur.