fore be inferred that the papers should be filed in the county of venue. But, when the application is to a justice, no such results follow. He may exercise his powers in any part of the state. There is no venue. Consequently there is no inference as to the filing of papers. The mere presence of the judge in one part of the state or another is of no consequence. He acts in any place where he may happen to be-at home, aboard the railroad train, or in the forest. While the court pursues the inquest at the place where it sits when the application is made, the justice is not so limited, but may indicate by his order when and where it shall be held. The inquest being ex parte and transitory, he may pursue it at such times and places in the judicial district as shall best serve the purpose. Matter of Fairchild, 151 N. Y. 359, 45 N. E. 943. We thus see that, while an inference might possibly be drawn from the fact of venue in case the inquest is by the court, no such inference obtains when the inquest is by the justice.

But it is not necessary on this motion to decide where the petition should have been filed. It may be that it should have been filed with the Secretary of State, where the statement, the subject-matter of the inquest, is required to be filed. It may be that, when the inquest is made by the court, it should be filed with the clerk of the court in the county where the court is then sitting. It may be that, when the inquest is by a justice out of court, as in this instance, it should be filed where he directs, or in the clerk's office of the county where one or more of the parties reside. I shall not attempt to solve any of these puzzles. It will suffice for the present purpose to hold that the deposit of the petition with the justice was not such a filing as the statute contemplates.

The motion of respondent must, therefore, prevail, and the order directing the inquest be vacated and set aside.

Ordered accordingly.

(55 Misc. Rep. 34.)

ELLIS v. ELLIS.

(Supreme Court, Trial Term, New York County. June, 1907.)

1. INJUNCTION-PRELIMINARY AND INTERLOCUTORY INJUNCTIONS-Grounds. Code Civ. Proc. § 603, providing that, where it appears from the complaint that plaintiff demands and is entitled to a judgment against defendant restraining the commission or continuance of an act, the commission or continuance of which, during the pendency of the action, would produce injury to plaintiff, an injunction order may be granted to restrain it, does not entitle a plaintiff wife, in an action for separation from bed and board, to an injunction restraining her husband from cohabiting with another woman.

[Ed. Note. For cases in point, see Cent. Dig. vol. 27, Injunction, § 307.] 2. SAME.

Code Civ. Proc. § 604, subd. 1, providing that where it appears that defendant during the pendency of the action is doing or about to do some act in violation of plaintiff's rights, respecting the subject of the action, and tending to render the judgment ineffectual, an injunction order may be granted to restrain him therefrom, and subdivision 2, providing that, where it appears that defendant during the pendency of the ac

and 140 New York State Reporter

tion threatens or is about to remove or dispose of his property with intent to defraud plaintiff, an injunction order may be granted to restrain the same, do not either of them entitle plaintiff, wife, in an action for separation from bed and board, to an injunction restraining her husband from cohabiting with another woman.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 27, Injunction, § 307.]

Action by Abbie Ellis against James Ellis for separation from bed and board. Motion by plaintiff for an injunction restraining defendant from cohabiting with another woman. Motion dismissed.

Grauer & Rathkopf, for plaintiff.
Roswell H. King, for defendant.

TRUAX, J. This action is brought to obtain a judgment of separation from bed and board. It is conceded that the parties to the action have not lived together for the past eight or nine years, and it is claimed by the defendant that they separated by mutual consent prior to the 18th day of December, 1893. It is admitted by the defendant that he has been living with the woman referred to in the plaintiff's moving affidavit, and that she has borne him two children, who are 15 and 13 years of age, respectively. The defendant alleges that he is the sole support and maintenance of this family. The plaintiff, in the notice of motion served herein, asks for an injunction restraining and enjoining the defendant from living or cohabiting with said woman during her (plaintiff's) life.

There are no allegations in the complaint or moving papers which entitle the plaintiff, under the provisions of the Code, to a temporary injunction. To entitle the plaintiff to a temporary injunction it must be shown that the application comes within the provisions of section 603 or section 604 of the Code of Civil Procedure. Section 603 provides as follows:

"Sec. 603. Injunction, when the right thereto depends upon the nature of the action. Where it appears from the complaint, that the plaintiff demands and is entitled to a judgment against the defendant, restraining the commission or continuance of an act, the commission or continuance of which, during the pendency of the action, would produce injury to the plaintiff, an injunction order may be granted to restrain it. The case, provided for in this section, is described in this act, as a case, where the right to an injunction depends upon the nature of the action."

This action is brought to procure a judgment separating the parties from bed and board. It is apparent upon the face of the complaint that this is not a case where the plaintiff is entitled to an injunction under section 603 of the Code, "where the right to injunction depends upon the nature of the action." In other words, where an injunction is sought under this section it must be prayed for as part of the relief demanded in the complaint. Olssen v. Smith, 7 How. Prac. 481; Sanders v. Ader, 27 App. Div. 176, 49 N. Y. Supp. 964.

Section 604 of the Code of Civil Procedure provides as follows:

"Sec. 604. When the right thereto depends upon extrinsic facts. In either of the following cases, an injunction order may also be granted in an action: (1) Where it appears, by affidavit, that the defendant, during the pendency of the action, is doing, or procuring, or suffering to be done, or threatens,

or is about to do, or to procure, or suffer to be done, an act in violation of the plaintiff's rights, respecting the subject of the action, and tending to render the judgment ineffectual, an injunction order may be granted to restrain him therefrom. (2) Where it appears, by affidavit, that the defendant, during the pendency of the action, threatens, or is about to remove, or dispose of his property, with intent to defraud the plaintiff, an injunction order may be granted, to restrain the removal or disposition."

The plaintiff is not entitled to an injunction under subdivision 1 of this section, because there is nothing in the moving papers to indicate that the defendant is doing, or threatening to do, any act in violation of the plaintiff's rights respecting the subject of the action and tending to render the judgment prayed for in the complaint ineffectual. The plaintiff is not entitled to an injunction under subdivision 2 of section 604, because it does not appear by affidavit that the defendant threatens or is about to remove or dispose of his property with intent to defraud the plaintiff. It is well settled that the remedy by injunction is to be resorted to only where an injury without adequate redress may result if the writ be not allowed. Savage v. Allen, 54 N. Y. 458; Johnston Harvesting Co. v. Meinherdt, 9 Abb. N. C. 393; Keating v. Fitch, 14 Misc. Rep. 128, 35 N. Y. Supp. 641; Van Veghten v. Howland, 12 Abb. Prac. (N. S.) 461. The statute has given the plaintiff her remedy. This remedy is the statutory action for absolute divorce. The mere fact that the act complained of is in violation of law, or even that it is criminal or immoral, will not warrant an injunction. Anderson v. Doty, 33 Hun, 160; Village of Brockport v. Johnston, 13 Abb. N. C. 468; Village of New Rochelle v. Lang, 75 Hun, 608, 27 N. Y. Supp. 600. The extreme limit to which the courts have gone in granting injunctions in matrimonial actions has been to restrain the husband from disposing of his property where such disposal would result in depriving the wife of her support, or in restraining a divorced husband from interfering with the property rights of the wife. Vermilyea v. Vermilyea, 14 How. Prac. 470; Holmes v. Holmes, 4 Barb. 295; Kirby v. Kirby, 1 Paige, 261. The power of a court of equity to issue preliminary injunction is one that should be exercised with extreme caution, and only in very clear cases. The order will not be granted in doubtful cases, or in new ones not coming within well-established principles. Ramsey v. Erie R. R. Co., 38 How. Prac. 193; Woodward v. Harris, 2 Barb. 440.

Motion dismissed, without costs. Settle order on notice.

(55 Misc. Rep. 58.)

DEARING v. BOSS et al.

(Supreme Court, Trial Term, New York County.

June, 1907.)

MECHANICS' LIENS-INDEMNITY AGAINST LIENS-ACTIONS ON BONDS-TIME OF

COMMENCEMENT.

Code Civ. Proc. § 1236, provides that every judgment shall be signed by the clerk and filed in his office, and that such signing and filing shall constitute the entry of the judgment. Section 1237 provides that the clerk on entering final judgment must immediately file the judgment roll, and section 1238 provides that the judgment roll shall be prepared and furnished to the clerk by the party at whose instance entered, except

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as therein provided. Section 1239 provides that a proceeding to enforce or collect a final judgment cannot be taken until the judgment roll is filed. Held, that an action on a bond conditioned for the payment of any judgment that might be rendered for the enforcement of a mechanic's lien brought after a decision and judgment had been signed by the justice, but before sections 1236, 1237, 1238, and 1239 had been complied with, was premature, and that this was so notwithstanding an order was obtained after commencement of the action on the bond, providing for entry of the judgment nunc pro tunc as of a date prior to the commencement of the action.

Action on a bond by Benjamin A. Dearing against William Boss and others. Complaint dismissed.

C. B. Augustine, for plaintiff.
E. J. Krug, for defendants.

GREENBAUM, J. What constitutes the entry of a judgment is prescribed by sections 1236, 1237, 1238, and 1239 of the Code of Civil Procedure. A decision and judgment were signed by the justice before whom the mechanic's lien action was tried, but none of the Code requisites of filing and entering the judgment has been complied with. Section 1239 provides that "a proceeding to enforce or collect a final judgment cannot be taken until the judgment-roll is filed." The condition of the defendants' bond given to release the real estate of one David Quigley from the mechanic's lien filed by plaintiff was that:

"If the said David Quigley or his legal representatives shall well and truly pay or cause to be paid any judgment that may be rendered against the said property in any proceedings to enforce the said lien, then this obligation shall be void, otherwise to remain in full force and virtue."

There are decisions in other jurisdictions and some in this state under the old Code of Procedure, and in actions in Justices' Courts, to the effect that the pronouncing of judgment after the trial and final submission of a case where there is nothing more to be done than to enter the judgment constitutes the "rendition of a judgment." It may be that, inter partes, a judgment may be deemed "rendered," even though there be an omission or neglect to formally enter the judgment, as where the right to an appeal of a party is involved. Fleet v. Youngs, 11 Wend. 522, 527, 528; Bank of Geneva v. Hotchkiss, 5 How. Pr. 478. But, where the right of action against a third party, like the defendants, who were sureties, depends upon the prerequisite of the rendition of a judgment, it seems to me it must rest upon a judgment duly entered and which is in a condition to be enforced as provided for by section 1239. The signature of the justice to the decision and the judgment merely constituted authority for the entry of the judgment (Knapp v. Roche, 82 N. Y. 369) and until an actual entry of the judgment an action upon the bond given by the defendants is premature. Since the trial of this action it appears that plaintiff has procured an order nunc pro tunc directing the filing of the judgment in the office of the clerk of the county of New York as of the 13th day of June, 1901, and that the judgment was duly filed on May 16, 1907, pursuant to said order. It seems to me, however, that the rights of the parties must be determined as of the date when the ac

tion was commenced, and for the reasons above stated I am of opinion that the complaint must be dismissed.

Complaint dismissed, with costs.

(55 Misc. Rep. 60.)

DAMBMANN v. METROPOLITAN ST. RY. CO.

(Supreme Court, Trial Term, New York County. June, 1907.)

1. NEW TRIAL-INSUFFICIENCY OF EVIDENCE.

A motion for new trial after verdict, because of the insufficiency of the evidence, can only be granted where the weight of the evidence is such that the court can see the verdict must have been the result of passion, prejudice, mistake, ignorance, or corruption.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, New Trial, §§ 142, 146.]

2. WITNESSES-CONFIDENTIAL COMMUNICATIONS.

The patient, when a witness, can no more be compelled to disclose confidential communications than can the physician.

[Ed. Note. For cases in point, see Cent. Dig. vol. 50, Witnesses, § 780.] 3. SAME PHYSICIAN AND PATIENT.

The relation of physician and patient being established, communications by the patient to the physician will be presumed to be necessary for proper treatment in a professional capacity.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses, § 786.] 4. DEPOSITIONS-INADMISSIBLE EVIDENCE.

Though part of the testimony taken by deposition is inadmissible, the unobjectionable portion is not therefore to be excluded.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 16, Depositions, § 276.]

5. EVIDENCE-TESTIMONY AT FORMER TRIAL-GROUNDS FOR ADMISSION. Testimony of a witness on a former trial can be read only to refresh the memory of such witness or to contradict him.

[Ed. Note. For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 2406, 2407.]

Action by Emma A. Dambmann against the Metropolitan Street Railway Company. Verdict for plaintiff. On motion for a new trial. Denied.

See 97 N. Y. Supp. 91.

Sutro & Wright, for plaintiff.

Henry A. Robinson, for defendant.

GOFF, J. On the first trial of this case the jury rendered a verdict in favor of the plaintiff for $13,800. For error in refusing to charge a request the Court of Appeals reversed, and on the second trial a verdict for $10,000 was rendered. This verdict the defendant moves to set aside on the grounds of being against the weight of evidence, of being excessive, and for prejudicial error on the trial.

In entertaining a motion to set aside a verdict on the ground that it is against the weight of evidence, the court must be guided by the wellknown principles which are given in Rumsey's Practice in these words:

"There is a plain distinction between the duty of the court in granting new trials as against evidence where the motion is made after a verdict of a jury