
    The Waters of White Lake, Inc., Respondent, v. Charles B. Fricke et al., Appellants.
   Motion to reinstate a temporary injunction reversed by order of this court November 29, 1949; and for certain additional in junctive relief. The. previous order of this court, reversing the order for a temporary injunction restraining the use of waters of a lake, contained the condition that the defendants be ready for trial at the next term of Supreme Court in Sullivan County and continue to be ready until the case is disposed of.” It provided also that if the case “ is not disposed of ” before May 1, 1950, the plaintiffs could apply to this court “for reinstatement” of “the temporary injunction.” (276 App. Div. 8.07, 808.) The case was tried at the April Sullivan County term before Mr Justice Elsworth, who announced he would be unable to decide it before August 1st. The use of the lake in the summer season is the focus of the controversy. The defendants were ready for trial and tried the case when reached,- and have thus conformed with the condition of the order of reversal. The words in context indicate the term “ disposed of ” in the decision referred to disposition of the action by counsel and not decision by the court. The literal conditions for reinstatement thus have not been met. Besides this, the motion here is more than for reinstatement of the injunction considered on the appeal. In addition to that it seeks injunctive relief which differs in form from that of the original order. Application for a recasting of such an order beyond reinstatement of the original one considered on appeal, would ordinarily be addressed to the Special Term. In any event we think we should not grant or deny on the merits temporary injunctive relief while the Judge who has tried the case has under advisement an ultimate decision of the question of the right to a final judgment of injunction. We are of the opinion that the question of injunctive relief during the process of decision should be in the discretion of the Judge who has the ease. Motion denied without prejudice to an application to Mr. Justice Elsworth for injunctive relief during the pendency of his decision, and without costs. Present — Foster, P. J., Brewster, Bergan and Coon, JJ.; Deyo, J., taking no part.  