Fine v. Rabinbauer — 49 Misc. 437

Majority

p. 437

Abraham Fine, Plaintiff, v. Samuel Rabinbauer et al., Defendants.

(Supreme Court, New York Special Term,

February, 1906.)

Headnote

Injunction—Preliminary injunction — Grounds and matters considered — Right depending upon extrinsic facts. (Code of Civil Procedure, § 604.)

Supplementary proceedings—Jurisdiction — City Court of the city of New York.

In an action by the receiver of a judgment debtor to recover from an alleged fraudulent assignee judgments which the latter had recovered upon the assigned claims, where the validity of the assignment is in doubt, the defendant should be enjoined from collecting the judgments during the pendency of the action.

The appointment in the City Court of the city of New York of a receiver in supplementary proceedings, upon a judgment of a Municipal Court in Brooklyn, is proper under the provisions of section 2434 of the Code of Civil Procedure.

Motion by plaintiff, as receiver of a judgment debtor, to restrain defendant Rabinbauer from collecting or issuing execution upon certain judgments recovered by him against defendant Schierloh during the pendency of this action.

Henry Kuntz, for plaintiff.

p. 438

Huth & Baker, for defendant Schierloh.

Jacob Eieger, for defendant Eabinbauer.

This is a motion by the plaintiff, as receiver of the assets of Buchbaum, a judgment debtor, to restrain the defendant Eabinbauer from collecting or issuing execution upon certain judgments recovered by Eabinbauer against the defendant Schierloh during the pendency of this action; which judgments are alleged to have been recovered by Eabinbauer upon claims fraudulently assigned to Eabinbauer by Buchbaum. The action is brought by plaintiff for the purpose of declaring said judgments to belong to plaintiff as receiver of the property of said Buchbaum. Plaintiff ivas appointed receiver in supplementary proceedings in the City Court upon judgments recovered by Saltzman and Gomberg, respectively, in the Municipal Court, Brooklyn, third district. The judgments, whose collection is sought to be enjoined, were recovered by Eabinbauer in the Municipal Court in Manhattan, fifth district. The claims upon which the latter judgments were based are alleged by Buchbaum and Eabinbauer to have been assigned in consideration of a pre-existing indebtedness and a cash payment, equal to the balance in value of said claims; this consideration, however, is denied in the moving affidavits, and upon all the facts seems doubtful. Upon the facts disclosed in all the affidavits it seems proper that an injunction should issue. The contention of defendants that the present plaintiff was improperly appointed receiver in the City Court, upon supplementary proceedings arising out of a judgment recovered in ,a Municipal Court in Brooklyn, is refuted by section 2434 of the Code of Civil Procedure. ' The further contention that certain moneys deposited by Buchbaum with Saltzman are available to discharge the judgments which were the subject of the present supplementary proceedings has already been twice considered, once when raised as a defense to the action which resulted in said judgments and once upon a motion made before this court so to apply said moneys. In both instances the money thus deposited was

p. 439

held not available for this purpose, and the present court is bound by these decisions. The defendant Rabinbauer should be enjoined from collecting the judgments which he recovered against Schierloh, and Schierloh should be enjoined from paying said judgments to Rabinbauer, or his assigns, during the pendency of this action.

Ordered accordingly.