
    Marcus Heim, Appellant, v. New York Stock Exchange and Others, Respondents.
    Second Department,
    April 29, 1910.
    Appeal—appeal from order denying, temporary injunction—merits of controversy not determined.
    The Appellate Division on an appeal from an order granting or refusing a temporary injunction .will not determine the merits of the'controversy savé in ' exceptional cases. ,
    Thus, the Appellate Division will affirm an order denying a motion for an injunction pendente lite where many of the allegations of the com'plaint are denied by the answer which formed part of the papers used on the motion.
    Appeal by the plaintiff, Marcus Heim, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of ■ the clerk of the county of Kings on the. 10th day of September, 1909, denying the plaintiff’s motion for a preliminary injunction. .
    
      DeVphin M. -JGelmás-, for the appellant.
    
      Lewis Gass Ledyard\_ Walter F. Taylor with him on the brief], for the respondents. '
   Burr, J.,:

Defendant New York Stock Exchange is a voluntary, unincorporated association having a written constitution, which, among .other things, provides for the administration of its. affairs through .officers and committees'- selected, for -.that purpose. Defendants Louis M. Josephthalj Louis E. Rothschild- and Leonard A. Hochstadter - are carrying on business as stockbrokers under the firm name of Albert Loeb & Co. Josephtkal and Rothschild are members of defendant New York Stock Exchange. All of the other defendants are members of the governing committee of the last-named defendant. Plaintiff is a member of a voluntary association known as the Consolidated Stock Exchange of New York, and engaged in business upon said exchange. On May 19; 1909, the governing committee of defendant'New York Stock Exchange adopted a resolution in the following language : “Resolved, that any member of this Exchange who transacts any business, directly or indirectly, with or for any member of said Consolidated Stock Exchange [meaning the Consolidated Stock Exchange of New York, already referred to] who is engaged in business upon said Consolidated Stock Exchange, shall; on conviction thereof, be deemed to have, committed an act or acts detrimental to the interest or welfare of this exchange.” Prior thereto plaintiff, through the firm of Albert Loeb & Co., had purchased in the New York Stock Exchange stock, in various corporations upon -a margin, which stocks were held by the said firm upon his account. After the adoption of said resolution he was requested by the firm of Albert Loeb & Co. to close his account with them. He thereupon brought this action, and for relief prayed : “ First. That the said resolution adopted by the Governing Committee of the New York Stock Exchange, on May 19th, 1909, may be declared illegal, inoperative and of no effect. Second. That an .order of injunction issue, preliminary, until the hearing and determination of a motion to continue the same until the final .determination of' this case, and perpetual thereafter, to prevent and restrain each and all the defendants herein from continuing to abide by the terms of the said resolution adopted by the Governing Committee of the New York Stock Exchange, on May 19tli, 1909, and from refusing to execute orders from the plaintiff or his Customers on the New York Stock Exchange, and to prevent and restrain the said Loeb & Co. from closing tjie account of the plaintiff with them unless ordered to do so by the plaintiff according to established usage and custom.” Simultaneously with the commencement of the action plaintiff obtained a temporary injunction restraining the firm of Albert Loeb & Co. from closing his account except upon the conditions above specified, and" at the same time ‘moved for a further temporary injunction granting to him all of the relief prayed for in the complaint until the final determination of the action. From the order denying such.motion and vacating the injunction theretofore granted this appeal is taken:

notwithstanding the requirements of the statute (Code Civ. Proc. § 481, subd. 2) that a complaint shall contain “ A plain and concise statement of the facts constituting each cause of action without unnecessary repetition,” it is at least questionable whether the complaint in this action, containing fourteen pages of printed matter,states any cause of action against either of'the defendants. As to some of them it certainly does not. Be that as it may, very many of its allegations are denied by the answers interposed and forming part of the papers used on the motion. This court is committed to the policy of declining, upon appeals'froin orders granting or refusing temporary injunctions, to determine the merits of a controversy save in exceptional- cases. (Smith & Sons Carpet Co. v. Ball, 137 App. Div. 100; Flynn v. New York, Westchester & Boston R. Co., 135 id. 743.) This case does not present any exception to the general rulé. The action was commenced June 19, 1909. Issue was joined July 28,-1909. Several Special Terms for the trial of issues have since been held in Kings county, at which the issues herein could have been tried and final judgment entered upon the decision then made; If it be true, as was suggested on the argument, that since the entry of the order vacating the temporary injunction, plaintiff's account with the firm of Albert Loeb & Co. has been closed, so that as to them at least the question is academic, the soundness of the policy above indicated is made -more apparent.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Hirschjberg, P. J., Jenks,. Rich and Carr, JJ., concurred.

Order affirmed, with ten. dollars costs and disbursements^  