People ex rel. Mayor v. Judges of New York Common Pleas

An injunction order was granted in the above entitled cause upon an affidavit, setting forth that on January 4, 1856, Peter Connolly recovered á judgment in the Marine Court against the relators.- That the relators appealed from the judgment of the justice to the general term of the Marine Court, at which the judgment was affirmed. From that affirmance the relators appealed to the Court of Common Pleas, which court dismissed the appeal. The relators applied to this court for a mandamus to the judges of the Common Pleas, commanding them to reverse their judgment on the appeal, and directing them to hear the ease. The justice to whom that application was made did not make any order thereon, but suspended his decision until the Court of Appeals should pass upon a question now pending before them, in which a similar principle is involved. An order ex pa/rte, however, was obtained, in the nature of an injunction order, staying Connolly and his attorneys from proceeding upon his judgment in the Marine Court. This order was made upon affidavits, without any complaint being filed, or relief in any other way asked by any proceeding whatever against him.

The order must be vacated. An injunction can only issue against the parties to the action. (Watson v. Fuller, 9 How. Pr. R., 426). It must appear by the “ complaint” that the *182plaintiff is entitled to the relief demanded. (Code, § 219). Here no relief is demanded against Connolly. The relief asked is upon affidavit only, and that -against the judges of the Court of Common Pleas. If the relators have any remedy it must be by suit, in such form as they may be advised. This practice cannot be upheld.

Injunction order discharged.