Ætna Explosives Co. v. Bassick — 220 N.Y. 767

Majority

p. 767

Ætna Explosives Company, Incorporated, Appellant, v. Edgar W. Bassick et al., Respondents, Impleaded with Others.

Headnote

Ætna Explosives Co., Inc., v. Bassick, 177 App. Div. —, affirmed.

(Argued April 18, 1917;

decided May 1, 1917.)

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judical department, entered March 30, 1917, which reversed an order of Special Term granting a motion for an injunction pendente lite and denied said motion. The injunction restrained the prosecution of certain actions brought to recover on promissory notes of the plaintiff and restrained defendant Bassick from suing in the Federal courts on a claim against the plaintiff. The fundamental objects of the action were the cancellation on equitable grounds of

p. 768

an alleged agrément that the defendant Bassick claimed to have with the plaintiff and the notes and stock issued thereunder and the litigation and adjudication of the entire controversy in one omnibus action where all parties who were associated with Bassick or who hold notes or stock of plaintiff issued to Bassick or who had any claim through Bassick were before the court, and in which all issues involved between all the parties to this controversy and the rights of all parties could be finally adjudged and determined.

George L. Ingraham, John B. Stanchfield and William M. Parke for appellant.

James A. O’Gorman for Edgar W. Bassick et al., respondents.

Louis B. Eppstein and Harry A. Rosenbery for Lenpier Trading Co., Inc., respondent.

The appeal is from an order vacating an injunction pendente lite ‘ ‘ upon questions of law and not in the exercise of the court’s discretion,” and certifying the following question: “Does the complaint herein state facts sufficient to constitute a cause of aétion for equitable relief ? ”

We are of the opinion that an equitable cause of action is alleged. The question certified, however, we interpret, in view of the above statement contained in the order, as asking not whether the complaint states a cause of action entitling the plaintiff to any relief in equity against the defendants or any of them, but whether it states a cause of action entitling the plaintiff, under section 603 of the Code of Civil Procedure, to the injunction heretofore granted. Placing such interpretation upon it we answer the question in the negative.

The order appealed from should, therefore, be affirmed, with costs.

Hiscock, Oh. J., Chase, Hogan, Cardozo, Pound, McLaughlin and Andrews, JJ., concur.

Order affirmed.