
    JOHN B. WATSON et al., Resp’ts, v. FREDERICK E. SCAMMELL et al., App’lts.
    Motion—Court will not try merits of case on a motion.
    Appeal from an order of the special term denying defendants’ motion to vacate injuction.
    
      Mr. Putnam, for app’lts; William P. Wilder, for resp’ts.
   Per Curiam.

There does not seem to be any propriety in the court passing upon the merits of the controversy upon this appeal. No harm can re»ult by the continuance of the injunction, and the parties have had numerous opportunities to try the case upon its merits at the special term, and it is only upon such a trial that the rights of the parties can be determined.

The rights of the parlies may depend upon the conclusions arrived at upon the consideration of contradictory evidence, and by this appeal an attempt appears to be made to forestall the court, which will have the witnesses before it, by proceeding an expression of opinion upon these disputed questions, derived from an inspection of the affidavits of the witnesses.

Knowing as we do how differently oftentimes a witness swears as to the same subject matter in an affidavit from what he does when examined in open court, we do not think we should pass upon the merits of this controversy where no substantive right can be involved and where the rights of the parties can only be determined after a trial before the court.

The order appealed from should be affirmed, without costs, and the order entered hereon should state that the merits of the controversy have not been considered.  