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Norfolk & New Brunswick Hosiery Co. v. Arnold

27 N.Y.S. 661 Court N.Y. Gen. Term Decision date 1894-02-12 English

Delivered by PRATT, J.

Contents

Majority

p. 661
(76 Hun, 19.)
NORFOLK & N. B. HOSIERY CO. v. ARNOLD.
(Supreme Court, General Term, Second Department
February 12, 1894.)

Headnote

Injunction—Restraining Action.
Where a judgment has been recovered on some of the installments of -a continuous contract, thereby establishing the validity of the contract, rand other installments have since become due, an action to recover the ■later installments will not be enjoined.
Appeal from special term, Westchester county.
Action by the Norfolk & New Brunswick Hosiery Company ■against Anna Arnold to restrain defendant from prosecuting an action against the plaintiff in the court of common pleas, in New York city and county to recover the sum of $23,000. From an order temporarily staying said action, defendant appeals. Reversed.
For former reports, see 17 N. Y. Supp. 595 , reversed by 30 N. E. 590 ..
Argued before DYKMAN and PRATT, JJ.
p. 662
Blackwell Bros., (Frank E. Blackwell, of .counsel,) for appellant.
Walter D. Edmonds and John Hunter, Jr., for respondent.

Defendant, Arnold, has recovered in this court a judgment against this plaintiff upon several installments of a continuous contract, from which judgment an appeal is pending. Since the first action was begun, further installments have become due, to recover which this defendant brings an action in New York common pleas. The plaintiff now brings this suit, praying that defendant be restrained from prosecuting the action in New York common pleas, and from bringing any subsequent action to enforce the contract. The effect of the judgment recovered was to establish the validity of the contract. The affirmative relief against it, sought in the first action by the present plaintiff, having been denied, and the contract declared valid, the court could not, in that action, have restrained the successful party from proceeding to enforce the contract. Spears v. Mathews, 66 N. Y. 127 . WTe are at loss to see that the court has, in the present action, any better right to restrain the successful party from exercising the rights to which it has been declared entitled than it had in the previous action. Waring v. Yale, 1 Hun, 492 . This defendant, in bringing suit upon a contract declared to be valid, cannot be said to be acting vexatiously or oppressively; on the contrary, she is availing herself of a clear legal right. Cushman v. Leland, 93 N. Y. 652 , does not afford authority for this action. There, a trustee in a mortgage to secure a general issue of bonds has brought an action to foreclose the mortgage. The holder of one of the bonds, who was a party to the first action, and had therein set up his rights and submitted them to the court, was restrained from prosecuting a separate action for his individual benefit. That was a clear case of a multiplicity of suits. The prosecution of the individual action was in no sense requisite to protect the plaintiff’s rights, which could be fully protected in the action brought by the trustee. The order granting an injunction must be reversed, with costs.

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