There is no cogent reason for trial of this case upon affidavits. As we said in Mills v. United States Printing Co. (99 App. Div. 605, 608): “ It may be that the judgment upon trial will be far different from any preliminary relief which- this record justifies. (See Warsaw Water Works Co. v. Warsaw, 4 App. Div. 509; Meyers v. City of New York, 58 id. 534.) ”
The order is expressly limited to acts that constitute threats, or intimidation, or fraud, or injury to the person, property or business of the plaintiff, etc. It does not by implication prohibit acts which the law recognizes may be done by the defendants in seeking a successful issue of their differences *206with the plaintiff. The same act may be lawful, or be unlawful, from the fashion of its doing or from the circumstances which surround it. (Mills v. United States Printing Co., supra; 16 R. C. L. §§ 27, 28, 33, and cases cited.)
The clause in the order, “ or from marching up and down in front of or about plaintiff’s theatre or gathering in front of or in the immediate vicinity of same in meetings or demonstrations of any kind, making speeches or in any manner addressing or approaching the public or prospective patrons of plaintiff in reference to plaintiff’s business,” should have a limitation similar to that expressed with reference to other acts restrained by the order.
We do not mean that unless the acts named in the order are within - the said limitation they are lawful; for they may be so done as to offend sections 43, 2092 and 2094 of the Penal Law, or the ordinances of the city, among them Code of Ordinances, chapter 23, article 3, section 23; chapter 20, article 16, section 312. (See Cosby’s Code Ord. [Anno. 1917] pp. 472, 448.)
The condition of the Supreme Court calendar permits virtually an immediate trial of the issues, whether raised by demurrer or by answer. If the defendants are delayed unduly by the plaintiff, then, of course, they can apply to the Special Term for relief.
The order as thus modified is affirmed, without costs.
Thomas, Mills, Putnam and Blackmab, JJ., concurred.
Order modified in accordance with opinion and as so modified affirmed, without costs. Order to be settled on notice before the Presiding Justice.