Vietor v. Lewis — 38 A.D. 316

Majority

p. 316

George F. Vietor and Others, Respondents, v. Nathan Lewis, Isaac K. Cohn, and Isaac K. Cohn and Rebecca Cohn, as Executor and Executrix Respectively of the Goods, Chattels and Creditors of Isaac Cohn, Deceased, Appellants, Impleaded with Jacob Lewis and Martin M. Lewis, as Surviving Members of the Firm of Chas. Lewis & Bros.

Headnote

Injunction — not granted where the relief sought is contingent upon the happening of a future event.

A temporary injunction, restraining a sheriff from paying over the proceeds of the sale of property on executions under certain judgments, should not be granted in an action .brought.by a,-junior judgment creditor of the saíne judgment debtors to set .aside the judgment's under-whiéh the sale took place ■on the ground that they are fraudulent, where the-real purpose of the action is . to tie up the property levied upon under the executions issued upon such' judgments, which are claimed-to have been confessed in violation of the Bankruptcy Law,-until at -some future time the plaintiff may. institute -proceedings in bankruptcy and have the property thus tied up transferred to a trustee, to be appointed in such proceedings, in order to secure its ratable distribution among the creditors of the bankrupt.

p. 317

A temporary injunction will not be granted where the plaintiff is not entitled in that action to the final relief sought, and where such relief is not claimed to be absolute but only contingent upon the happening of a future event and upon the termination of proceedings which may' thereafter be brought in another court. . >

. Appeal by the defendants, Nathan Lewis and" others, from an order of the Supreme Court, made at New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of November, 1898, granting the plaintiffs’ motion to continue the temporary injunction granted herein during the pendency of the action.

An order to show cause granted in this action enjoined the defendants, and each of them, from receiving any portion of the money in the hands of the sheriff realized as the proceeds of the sale of the property of Charles Lewis & Bros, under certain executions mentioned in the complaint, and directed that the sheriff should hold such proceeds until the further order of the court, and Nathan Lewis was enjoined from parting with, or making any disposition whatever of, any of the accounts or proceeds of accounts of the firm of Charles Lewis & Bros, theretofore assigned to him ; and it was further asked that such injunction should be continued pending the action, and that a receiver should be appointed of the property of Charles Lewis & Bros, and of the proceeds thereof in the possession of the sheriff.

Samuel Fleischman, for the appellants Cohn.

Sidney H. Stuart, for the appellant Lewis.

Fmcmuel Blumenstiel, for the respondents.

The plaintiffs are judgment creditors of the firm of Charles Lewis & Bros.; and the defendants, other than the members of the-said firm, obtained prior judgments by confession and have issued executions on which levies were made upon some of the firm’s assets. Although the relief demanded in the complaint is in form that the judgments of these defendants and the executions issued thereon be set aside as fraudulent and void and that the" proceeds be transferred to, a receivercta-be appointed during the pendency of the action,

p. 318

the plaintiffs,; on the motion, did not insist upon a receiver, but disclosed the real relief which they sought, namely, to enjoin the payment of the proceeds,received by the sheriff' from the sale to the defendants having prior judgments till such tipie as proceedings might be taken in the United States courts in bankruptcy to have a trustee therein appointed who' might receive such property or proceeds for equal distribution' among the creditors.

JSTo sufficient showing was made to sustain the plaintiffs’ charge of fraud or that the defendants are not able financially to respond; but, on the' Other hand* the defendants’ affidavits directly show that the judgments' were for honest debts and were obtained' in good faith and that the defendants are financially responsible.

Apart, however, from the merits of the controversy or the verity of the judgments, the claim really made here was, that those confessions of judgment and "the transfers of account were in violation of certain sections of the Bankruptcy Law; and the purpose of the plaintiffs in seeking an injunction was to tie up the property until, some time thereafter, the other creditors, including these plaintiffs, might institute.proceedings in bankruptcy, and, by having the property thus tied Up transferred to a trustee to be appointed in such bankruptcy proceedings, secure its ratable distribution among the creditors. In other words it is sought in this action to issue an injunction for the purpose of "suspending the rights of the-defendants- under their judgments for an indefinite time so that the other creditors, if they deem it propers may take proceedings in the United States courts. . And this relief is asked for in an action in which it is .perfectly evident that no such -final relief can be given.

Without discussing the'plaintiffs’ right to interfere with .property upon which they have no lien or interest to be protected, we think that, under the provisions of the Code of Civil Procedure, a temporary injunction cannot be allowed. The right to final relief is'not here claimed to be absolute, but only contingent upon the happen■ing.óf a future event and the determination of proceedings winch may.be thereafter brought in the bankruptcy court'. It has- been many times decided that .a temporary injunction will not be granted in such-an ¡action-where.tke plaintiff is not entitled to final relief.

The learnéd judge below was of opinion that an injunction could be granted pursuant to the provisions "Of section T876 of the Code.

p. 319

The plaintiffs, no doubt, aware of the danger of obtaining too-much relief, although it was accorded to them, did not in their order ask for the appointment of a receiver, but contented themselves with, an injunction. This caution on their part was justified, for not only were they not entitled to a receiver, but had they called attention to-"the express language of section 1876 of the Code the learned court, would have seen that the' injunction thereby permitted must be “ deemed to be one of those specified in section 603.” The latter section relates to a case “ where the right to an injunction depends upon the nature of the action,” and, as already said, an injunction under that section will not be granted unless it appears that the plaintiff is. entitled to the final relief for which the action is brought,' (McHenry v. Jewett, 90 N. Y. 58 , 63.)

■ As the plaintiffs, therefore, could not obtain and were not. entitled to any final relief, there was no warrant for the granting of the. temporary in junction, and the order must be reversed, with ten "dollars costs and disbursements, and the motion for a temporary injunction denied, with ten dollars' costs,

. Van Brunt, P. J., Barrett, Rumsey and Ingraham, JJ.,. concurred.

- Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs,

Cases cited

McHenry v. Jewett 90 N. Y. 58 N.Y. 1882-10-10 at 63 p. 319