Bownes v. Weld — 3 Daly (N.Y.) 253

Majority

p. 253

Henry E. Bownes v. Charles M. Weld and others.

Special Term

April, 1870.

Headnote

A creditor at large, not having exhausted his legal remedy of judgment and execution, has no status in a court of equity to invoke its aid to test the validity of a judgment obtained and a mortgage alleged to have been executed by a debtor to defraud his creditors.

This was a motion to dissolve an injunction granted in an action brought to set aside a judgment and mortgage as having been obtained and executed to defraud creditors. It did not appear from the plaintiff’s papers that he had obtained a judgment against the mortgagor and judgment debtor, on which an execution had been issued and returned unsatisfied.

Hawes & Waddell, for motion.

R. H. Huntley, opposed.

I do not see how this injunction can be maintained. This action is commenced to set aside the judgments obtained by Weld & Nagle against Wiltse, and also the chattel mortgage executed by Wiltse to Weld & Nagle, as fraudulent as against the creditors of Wiltse.

Such an action cannot be maintained by a creditor at large, but he must show that he has obtained a judgment, and that an execution has been-issued thereon and returned unsatisfied, before equity will afford him relief (Dunlevy v. Tallmadge, 32 N. Y., p. 457). The plaintiff in this action never having exhausted his legal remedy of judgment and execution, cannot have any status in a court of equity, to invoke its aid to test the validity of the judgment and chattel mortgage complained of.

The injunction must be vacated with costs.