Sherman v. Franklin

The plaintiff moves for a temporary injunction to restrain the defendants from conducting a checking service in *993certain premises not covered by the license granted to the' defendants under certain agreements. By cross motion the defendants move to dismiss the complaint under rule 106 of the Buies of Civil Practice, upon the grounds that there is another action pending between the same parties for the same cause, that the complaint does not state facts sufficient to constitute a cause of action, and that plaintiff has an adequate remedy at law. The defendants also move to hold plaintiff’s motion for a temporary injunction in abeyance pending the hearing and the determination of their motion challenging the sufficiency of the complaint, and that in the event that their said motion is denied, that they be afforded reasonable opportunity to oppose plaintiff’s motion for a temporary injunction and to interpose affidavits in connection therewith.

I am of the opinion that the pending dispossess proceeding in the Municipal Court is not another action pending between the same parties for the same cause. The other grounds of objection are likewise without merit. A motion of this character must be denied “ ‘ If in any aspect upon the facts stated the plaintiff is entitled to a recovery * * V” (Condon v. Associated Hospital Service, 287 N. Y. 411, 414.) The cross motion is accordingly denied with leave to the defendants to serve their answer within ten days of the service of a copy of the order hereon. In view of the foregoing determination, the application of the defendants to he afforded a reasonable opportunity to oppose the plaintiff’s motion for a temporary injunction is granted. That motion will appear on the calendar of November 1, 1946, for argument, at which time the parties should be ready to submit all papers and memoranda. Submit order.