
    The People of the State, of New York, Respondent, v. Louis v. Windholz, Appellant, Impleaded with Charles B. Crouse and William B. Crouse.
    
      Injunction — it cannot be granted by a county judge in an ■action for a penalty under the Agricultural Law.— nor in much an action brought An a Gounty'Gourti
    
    A county judge has no power to grant an injunction under section 10 of the •Agricultural Law (Laws of 1893; chap. 338), providing: “In an action in. the Supreme Court for the recovery of a penalty or forfeiture, . incurred: for the .violation of-any of.'-the provisions-of-this chapter, an application ,may’ he made on the part of the people to the court or any justice thereof, for-an injunction to restrain the defendant, his agents and employes, from the-further violation Of such provisions. The court or justice to whom such ' application may be made shall grant such in junction, on- proof by affidavit -that- . the defendant has: been guilty of the violations Alleged in ;fhe complaint, or of.' a. violation of any such, provision subsequent to the commencement of the-action, and in the same manner as injunctions are usually granted, under the rules and practice of the court.”
    Such an injunction is within the exception contained in section 606 of the Code-of Civil Procedure which provides: “Except where it is otherwise specially prescribed by law, an injunction order may be granted by the court in which, the action is brought, or by a judge thereof, or by any county judge;" and for this reason section 241 of the Code of Civil Procedure, relating to the-powers of county judges, and section 772 thereof, specifying the judges who-may make orders out of court without notice, have no application thereto. It.seems. that the power to grant an injunction in such a case is limited to an action brought in the Supreme Court, and that it cannot be granted in an action brought in a County Court.
    Appeal by the defendant, Louis Windholz, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Oneida on the. 4th day of November, 1901, as amended by an order entered in said clerk’s office on the 19th day of November, 1901, denying said defendant’s, motion to vacate an injunction order granted by the county judge, of Oneida county, enjoining the defendants from selling vinegar containing certain specified ingredients. ■
    
      Frank Hopkms, for the appellant.
    
      Henry M. Love, for the respondent.
   Williams, J.:

The order appealed from should be reversed, with ten dollars-costs and disbursements, and the motion granted, with ten dollars costs.

The action was brought against Windholz, residing and doing business in Syracuse, and Crouse & Sons, residing and doing business in Utica, to recover penalties for alleged violations of sections. 50-53 of the Agricultural Law (Laws of 1893, chap. 338, as amd., by Laws of 1901, chap. 308), relating to the illegal sale of adulterated vinegar. It was claimed that the vinegar was sold by Windholz to Crouse & Sons in large quantities, and by Crouse & Sons, sold to its various customers about the country.

The action was brought in the Supreme Court and the injunction was granted by the.county judge of Oneida county and served at the time of the commencement of the action. Windholz alone made the motion to vacate the injunction upon the papers upon which it was granted, and he alone brings this appeal. The first question raised by the appellant is that the county judge had no power, to grant the injunction; that it could only be granted by the Supreme Court or a justice of that court. The action to recover penalties under the Agricultural Law can be brought either in the Supreme Court or the County Court, but the only provision contained in the law itself for the granting of an injunction is that in section 10, which reads as follows: “ In an action in the Supreme Court for the recovery of a penalty or forfeiture, incurred for the violation of any of the provisions of this chapter, an application may be made on the part of the people to the court or any justice thereof, for an injunction to restrain the defendant, his agents and employes from the further violation of such provisions. The court or justice to whom such application may be made shall grant such injunction, on proof by affidavit that the defendant has been guilty óf the violations alleged in the complaint, or of a violation of any such provision subsequent to the commencement of the action, and in the same manner as injunctions are usually granted, under the rules and practice of the court.’-’ It would seem that no injunction of the kind in question could be granted except by virtue„of the provision quoted. The court would have no power to grant such an injunction under any general provision of the statute or general rules of law. The Legislature has seen fit to limit the granting of such an injunction to an action' brought in the Supreme Court. It could not ■ be granted in an action commenced in the County Court. In giving the right to the injunction the Legislature has also limited the power to grant it to the court itself or a justice of that court,- meaning, of course, the court in which the action is brought--—the Supreme Court. A county jxxdge is not a justice of the Supreme Court; but it is claimed by respondent that he possesses the powers of a justice of the Supreme Court as to the granting of an injunction under thó law by reason of certain provisions of t-he'Co'de of Civil Procedure. Section 241 provides : “A county judge, within his county, possesses, arid upon-proper application1 must exercise, the power conferred by law, in general language, upon an officer authorized to perform the -duties of a justice of the súpleme coxxrt at chambers, or out bf court.”

Section 772 provides: “ Where an order, in an action, may be made by a judge of the court, out of court, and without notice, and the particular judge is not specially designated by law, it may be made by any judge of the court in any part of the State; or, except to stay proceedings after verdict, report or decision, by a justice of the Supreme Court, or by the county judge of the county where the action is triable, or in which the attorney for the applicant resides.”

Section 606 provides: “ Except where it is otherwise specially prescribed by law, an injunction order may be granted by the court in which the action is brought, or by a judge thereof, or by any county judge ; and where it is granted by a judge it may be enforced as ■the order of the court.” .

The last provision relates solely to injunctions, and must control as to the courts or officers who are empowered to grant the same. The Legislature has seen fit to make this special provision as to granting orders of this kind, and has, therefore, taken them out of the two former sections quoted — sections 241 and 772. This proposition was held in the well-considered case of People ex rel. Roosevelt v. Edson (52 N. Y. Super. Ct. 53).

Under section 606 the county judge has power to grant any injunction in an action in the Supreme Court, “except where it is otherwise specially prescribed by law.” It - seems to us that this exception is present in this case. As before stated, the Legislature has been particular, in section 10 of the Agricultural Law, to limit the granting of injunctions to actions brought in the Supreme Court, and has there provided that they shall be granted by the court or a justice ■ thereof. There seems to have been a design to limit the power to grant injunctions here within a narrower compass than other injunctions are granted, and we think such intention was to limit the power to the court itself or an actual j ustice thereof, as distinguished from an officer who might, under other provisions of law, perform the duties of a justice of the Supreme Court. We conclude, therefore, that the county judge of Oneida county had no power to grant the injunction sought to be vacated.

It seems to us furthermore that there was not sufficient legal evidence in the affidavits upon which the injunction was granted that the appellant had been guilty of the violations alleged in the complaint. It was not shown that the vinegar came from appellant at all. All the- evidence -upon that subject was merely hearsay. The People could readily have obtained competent evidence, but neglected ■ to do so. Nor was the' evidence sufficient under the statute to show that.the.vinegar was adulterated. .

The tests were not shown to have been properly made. (People v. Braested, 30 App. Div. 401.) Very likely they were properly made, and it could have, been made to -appear, but tile- affidavits were defective in that respect. These injunctions should not he granted'except upon affidavits sufficient under the statute to show violations thereof. ■ ■ There is no reason for any looseness-or carelessness-in the preparation-of the'.affidavits, and the defendants bush ness should not be interfered with by such an -injunction unless, the statutory requirements are found in the affidavits. We are-unwilling to establish any precedent of sustaining injunctions issued upon inadequate proof-.' -, ... ■

No harm can come by vacating this injunction. A new. one can be secured upon sufficient affidavits from the court or judge thereof if desired.

Our conclusion is, therefore, that the order appealed from should be reversed, with ten dollars costs and disbursements,-and- the motion granted, with ten dollars costs. • .

McLennan and BÉisoock, J.T., concurred; Adams, P. J., and Spring, Ji, concurred upon first ground only.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  