Majority
p. 160MOWBRAY a. LAWRENCE. Supreme Court, First District; At Chambers, October, 1861.
Headnote
Injunction and Receiver.The fact that a demurrer to the complaint, as not stating facts sufficient to constitute a cause of action, has been sustained by the court, is a conclusive answer to a motion upon the complaint for an injunction and receiver.
Motion for injunction and receiver.
This was an action against Lawrence, and Kelly, sheriff of New York county, to restrain such sheriff from selling partnership property of Mowbray & Lawrence, upon an execution against Lawrence alone. The defendant Kelly had demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, and his demurrer was sustained. (See 13 Ante, 317.)
The plaintiff’s motion for an injunction and receiver now came on for argument.
Nelson Smith, for the motion.
A. J. Vanderpoel, opposed:
This motion is founded on the complaint in the action, and an affidavit of plaintiff swearing generally that he knows the contents of the complaint, and that the same is true, and consent of the defendant Lawrence to the appointment of a receiver. The motion is opposed by the sheriff. The complaint was demurred to, on the ground that it did not state facts sufficient to constitute a cause of action.
The demurrer has been argued and sustained.
I am bound by that decision.
Motion denied, with $10 costs.