
    John H. Rhodes and Joel S. Faulknor, Respondents, v. Joseph B. Wheeler and Harry Winfield, Appellants.
    
      Injunction order — granted, ex parte after answer -servedorder to. show came before a judge not in the district nor in a county adjoining that of the venue.
    
    Under section 609 of the Code of Civil Procedure, a judge who has granted a preliminary injunction has no power, after the defendant has answered, to grant, on an ex parte application, a further order which, although recited to he a “supplementary injunction,” enjoins the defendant from doing acts not enjoined by the original injunction.
    The subsequent service of an order to' show cause why the injunction should not be continued, granted by a judge not in the district in which the action is brought, or in a county adjoining that in which the venue is laid, does not cure the irregularity or give the injunction new life from that date.
    
      Appeal by the defendants, Joseph B. Wheeler and another, from an order of the Supreme Court, made at the Oneida Special Term and entered in the office of the cleric of the county of Montgomery on the 15th day of November, 1899, denying the defendants’ motion to vacate an injunction oz'der gz'anied September 23, 1899, on the ground that it had been irregularly granted.
    
      Lyon, Painter & Hinman, for the appellants.
    
      Henry M. Love, for the respondents.
   Parker, P. J.:

It needs but a statement of the facts to show that the order appealed from cannot be sustained.

On June 1, 1899, on the application of the plaintiffs,- an injunction order was granted, without notice, against the defendants by a judge residing in the tifth judicial district, and was served with the summons and complaint in this action. Subsequently'the defendants appeared and answered. Thereupon, on August 1,1899, an amended complaint was served upon the defendants, who, on August 9,1899, served an answer thereto. On September second a motion was made by the defendants to change the venue from Montgomery county to Broome county, which was denied.

On September 23, 1899, the plaintiffs proeui’ed from the same judge who gz*anted the injunction order of June first azz order in which it is recited that it is a supplementary in junction order in addition to the one heretofore gi’anted ” by the same judge. Such order was procured without any notice to the defendants, and was allowed without requiring any additional security. Upon.the service upon them of such order, the defendants applied ex parte to the judge who granted it and upon the papers upon which it was granted for an order vacating the same upon the grounds, among several others, that-it was granted ex parte, that the judge who granted it was without jurisdiction to do so, and that it was error to grant it without requiring security to be given.

It is manifest that such application should have been granted. The order is an independent and additional injunction order. It is not a mere explanation of the prior order of June first, as the plaintiffs’ counsel claim. It goes further than that order and enjoins the defendants from doing acts which were not enjoined by that former order. It is, therefore, clearly within the prohibition contained in section 609 of the Code of Civil Procedure that an injunction order, after defendant has answered, can be granted only upon notice oían order to show cause.” It was, therefore* irregular to grant it ex parte. And, moreover, the judge who did grant it would have had no right to do so upon notice, for the venue was in the county of Montgomery, in the fourth judicial district, and the county in which the judge resides was not .'an ad jacent one. A motion which can be granted only upon notice must be made within the judicial-district in which the action is triable, or in a county, adjoining that in which it is triable.” ■ (Code, § 769.) It is only expolie orders that may be granted by a judge in any part of the State. (Code, § 772.) Therefore, if the plaintiffs desired to get the additional order of September twenty-third, they should have moved on notice before some judge in the fourth judicial district, and not attempted to evade the plain rules' of practice by getting á so-called supplementary order from a judge exponte in another district.

When the defendants moved to vacate .the order of September twenty-third, the judge who granted it declined to entertain their motion until notice had been given to the plaintiffs’ attorneys, and named the fourth day of November as the day upon which he would hear the application. The defendants thereupon, on the 26th day of October, 1899, served upon the plaintiffs’ attorneys notice that such an application would be then made at the chambers of such judge. Upon such fourth day of November, the defendants appeared at the chambers of such -judge, and, he being then absent, it was agreed between them and the plaintiffs’ attorneys that the' application should be heard as soon as they could arrange with the said judge for a day upon which he would hear it. Subsequently, on November eighth, the plaintiffs served upon the defendants’ attorneys an order granted by said judge to show cause before him at his chambers, on November eleventh, why the motion to vacate such injunction order of .September twenty-third should not be denied, and why the same should not be continued and leave granted to the plaintiffs to file a new undertaking. Upon such eleventh of November the parties both appeared before the judge, who then and there made an order denying the application to vacate the order of September twenty-third and continuing the same, on condition that plaintiffs file an undertaking in the sum of $250, and pay to the defendants $10 costs on or before Hovember 21, 1899. From the order so made this appeal is taken.

As shown above, the refusal to vacate the order of September twenty-third ivas error. It was irregularly granted in plain disregard of the prohibition contained in section 609 of the Code.

The attempt to give such order new force and effect by the order to show cause why it should not be continued, did not cure the irregularity, or give it a new life from that date, for the reason above stated, that the judge had no jurisdiction to entertain such a motion. As appears in the order, such objection was taken by the defendants in'due season and the grounds thereof specifically stated and urged upon the attention of the judge, and it cannot, therefore, be claimed that anything has been waived by them in that regard. All of the facts so relied upon appear in the original papers upon which the order of September twenty-third vras granted.

Without considering the other questions raised by the appellants’ attorneys, the above reasons require that the order should be reversed.

All concurred.

Order reversed, with ten dollars costs and disbursements, and order of September 23, 1899, vacated, Avith' ten dollars costs of motion.  