Greanelle v. Mercantile Benefit Ass'n , 70 N.Y. St. Rep. 305 ( 1895 )

BEEKMAN, J.

The preliminary injunction asked for would, in a measure, immediately afford to the plaintiff the greater part of the relief for which he prays judgment. The defendant has answered, and there are therefore issues in the case to be tried. Under such circumstances the right of the plaintiff should be quite clear to justify a preliminary injunction, and it should also appear that a failure to enjoin pendente lite would probably result in a barren judgment, should the plaintiff prevail on the trial. In the present -case I do not consider that the alleged invasion of the plaintiff’s rights is so clear, or that the consequences of a failure to grant him present injunctive relief will be so serious, as to justify favorable action upon his application. The inconvenience to which the plaintiff may be subjected before the trial of the action is an increase, moderate in amount, in the mortuary assessments he may be called upon to pay, while the defendant corporation would be exposed to most serious embarrassment in the conduct of its business should the court undertake to suspend the operation of the by-laws complained of. There are 2,000 members of the defendant, of whom about 30 seem to have objected to these by-laws, and only 5 of the latter are taking any active part in this litigation. Under such circumstances the exercise of a sound discretion suggests the refusal of so drastic a remedy. In disposing of this motion I have purposely refrained from discussing the merits of the controversy, in order that the parties may not be embarrassed on the trial, where such discussion fitly belongs, by any previous judicial determination.

Motion denied, without costs.