Order reversed on the law, without costs. The court at Special Term has held that it Was without power to issue a temporary *898injunction. In this we think the learned justice is in error. The propriety of granting or refusing a temporary injunction is to be determined on the papers and proofs before the court in the exercise of discretion. As the ease is now being tried on the merits before the learned judge making the order, and the motion papers embrace the minutes of the trial to date, the motion is remitted to the Special Term for decision. Kelly, P. J., Kelby, Young and Kapper, JJ., concur.