
    William H. Jackson, Resp’t, v. Jesse H. Bunnell, App’lt.
    
      (Court of Appeals,
    
    
      Filed April 16, 1889.)
    
    1. Pbaotice—Injunction—When not gbanted—Code Crv. Pbo., § 603.
    A permanent and final injunction can in no case be granted on motion, and by a mere order, when no action between the parties is pending, but tile actions covering the controversy have gone to final judgment.
    3. Same—When temfobaby injunction abbogated—Appeal.
    Where, after judgment there has been an appeal, a previous temporary injunction is abrogated by the judgment, and any new or further restraint must be contained in the final judgment or order, or cannot be granted at all.
    
      3. Same—When injunction not granted on affidavit and order.
    A permanent injunction is in no sense a provisional remedy; it is always, and must be, final relief. A court of equity may grant it in an action where the pleadings show its necessity and the remedy is asked as an element of the final relief sought, but after judgment which does not award it, and which judgment is a final disposition of the action, there can be no permanent injunction granted upon affidavits and an order.
    4. Same—What constitutes an exception to the rule.
    To constitute an exception to the rule the case must appear to be one in which the injunction is not final and permanent, or one in which the action is still pending although an interlocutory judgment has been rendered. ,
    5. Same—Permanent injunction—Pounded on affidavits—When not
    authorized
    If or do cases of this character furnish any authority for an injunction granted upon a motion and founded on affidavits, which is permanent and final in its character, and assumes after a judgment has been rendered which imposes no restraint and reserves no fight to apply upon the foot of the decree, to stay and enjoin finally and entirely the enforcement of a judgment in another court.
    Appeal from an injunction awarded after final judgment was entered at the general term of the New York common pleas.
    
      Henry C. Andrews, for app’lt; N. A. McBride, for resp’t.
   Finch, J.

—The plaintiff in this case brought an action to foreclose a lien upon certain property belonging to one Myers, and which consisted of six lots, with newly constructed buildings thereon, located on the northerly side of Eighty-second street, in the city of New York, and 106 feet easterly of the northeast corner of that street and Tenth avenue. Their notice of lien was filed on the 13th of November, 1886, and their complaint served on the 8th of the following December. The pleadings in that action are not returned, and we cannot know their contents. The referee’s report and the final judgment rendered are before' us, and from them and other papers we are enabled to ascertain that the parties defendant were, besides Myers, his general assignee, Roberts, and seven other persons, among whom were Bunnell and McLaughlin, who are the present appellants. The latter were made defendants because of a prior lien or attempted lien made and filed by them. Their notice was filed October 30, 1886, or about two weeks in advance of the plaintiffs’, but described the property sought to be charged as six three story houses on the north side of West Eighty-second street, “ commencing about 100 feet from the corner of Ninth avenue and Eighty-second street.” This description was probably incorrect, and may not have covered the houses in question; but it was accompanied by a diagram upon which the six houses are indicated by the figures 100 placed between the west lot of the group and the corner of Tenth avenue. These figures were at first written in the diagram on the other side of the houses and between them and Ninth avenue, out were at some time erased and put where they now appear. Before the 13th of January, 1887, Bunnell and McLaughlin began an action in the district court of the city for a foreclosure of their hen, making no person defendant except Myers. This the hen law permitted, since their claim was less than $250. Meanwhile the present action, which was in the common pleas, proceeded to its termination. Bunnell and McLaughlin interposed no answer. Their judgment in the district court appears to have been entered on the 3d day of December, 1886, or three days before the plaintiffs’ complaint and notice were, and contained a correct description which had been allowed by. amendment. They had issued execution, and the sheriff was preparing to sell, when the referee’s report’ in this action was filed. The referee found that Bunnell and McLaughlin had no lien upon the premises, and awarded judgment of sale and foreclosure in favor of the otherlienors, any surplus obtained to be paid to the general assignee of Myers. At this stage of the difficulty the present plaintiffs obtained an order to show cause why Bunnell and McLaughlin should not be restrained from enforcing their judgment.

This order was founded upon affidavits. It came on to be heard on the same day of plaintiff’s application for judgment, and was accompanied by a stay of proceedings or preliminary injunction granted at the same time with the order. Judgment in the action was awarded in favor of the plaintiffs and duly entered.

That judgment gave them no relief by way of injunction restraining the enforcement of the prior action. If in their complaint they set out the facts and asked for an inr junction, that relief was refused them on the final judgment. If they did not set out the facts and ask for the needed restraint, of course they could not have it in the judgment. Undoubtedly they did not, for they claim to have discovered a fraudulent alteration of the notice of lien after their own action was commenced.

The judgment was entered on the fifteenth day of March, which was also the return day of the order, but the permanent injunction was not then awarded. The decision allowing it seems to have been made on the 21st of March, and the order was entered as having been granted at a special term held on the 30th of March. On these facts we are met by the question whether a final and permanent injunction can in any case be granted on motion and by a mere order, when no action between the parties is pending, but both actions covering the controversy have gone to final judgment.

Under the law of this state there is no authority for such an order. The Code has abolished the writ of injunction and substituted as a provisional remedy an injunction granted by an order. Code Civ. Pro., § 602.

It can be awarded only in the cases and in the manner specifically prescribed, and is impliedly forbidden in any others. Fellows v. Heermans, 13 Abb. N. S., 9.

Even where after judgment there has been an appeal, the previous temporary injunction is abrogated by the judgment, and any new or further restraint must be contained in the final judgment or order, or cannot be granted at all. Gardner v. Gardner, 87 N. Y., 18; People v. Randall, 73 id., 416; Spears v. Mathews, 66 id., 128.

The rule is easily justified on principle. An injunction by order is a provisional remedy and temporary in its character. It assumes a pending litigation in which all questions are to be settled by a judgment, and operates only until that judgment is rendered. If by that, a permanent injunction is granted, the temporary one is of course ended, and equally so if a permanent injunction is in the end denied. The order here appealed from cannot be sustained as a provisional remedy under the Code, for it conforms to none of the necessary conditions.

But a permanent injunction is in no sense a provisional remedy. It is always and must be final relief. A court of equity may grant it in an action where the pleadings show its necessity, and the remedy is asked as an element of the final relief sought, but after judgment which does not award it and which judgment is a final disposition of the action, there can be no permanent injunction granted upon affidavits and an order. In High on Injunctions (section 1591) it is said that there is no precedent for granting a permanent injunction upon affidavits.

There may be exceptions to that rule, but when examined most of them will appear to be cases in which the injunction was not final and permanent, or in which the action was still pending, although an interlocutory judgment has been rendered. The case of Travis v. Myers (67 N. Y., 542), is an illustration.

The action was against an assignee for the benefit of creditors to close up his trust. After a decree for an accounting, an injunction restraining suits at law was granted on motion. The court describes the decree as interlocutory, so that the action was still pending and not ended by a final judgment which itself granted no restraint. It is possible, also, that such an injunction should be regarded as rather provisional than permanent, and intended merely to protect the court’s possession of and right to the assets to be distributed until realized and finally divided. Thompson v. Brown, 4 J. Ch., 619; Attorney-General v. Guardian Mut. Life Ins. Co., 77 N. Y., 272.

But cases of this character, whether regarded as exceptional or not,furnish no authority for an injunction granted upon a motion and founded on affidavits, which is permanent and final in its character and assumes after a judgment has been rendered which imposes no restraint and reserves no right to apply upon the foot of the decree, to stay and enjoin finally and entirely the enforcement of a judgment in another court. That relief, subject perhaps to possible exceptions resting upon peculiar grounds, can only be given in an action properly brought and upon pleadings which warrant the relief.

Ther,e was, therefore, in this case no jurisdiction to make the order appealed from. Bunnell and McLaughlin had a regular judgment of foreclosure against Myers and could enforce it against him. It did not bind or affect the present plaintiffs, as it respected their liens. If for any sufficient reason they desired to prevent its enforcement they should have served an amended or supplemental complaint charging the judgment of the district court to have been fraudulent, or if that relief in the pending action could not have been given by reason of its peculiar character, then they should have brought a new action to set aside or restrain the judgment of which they complain.

If that action could not be maintained it would be because the appellants’ judgment was good against Myers and could be enforced against him, and not good as against the lienors in the common pleas, who could pursue their own remedy unaffected by it. Those suggestions, however, would be equally an answer to an injunction sought on motion. Without discussing those questions it is sufficient for present purposes to hold that the injunction granted was permanent and final, and beyond the authority of the court to-grant on a mere motion founded upon affidavits.

The order should be reversed, with costs.

All concur.  