Bennett v. Wright — 28 N.Y.S. 453

Majority

p. 453

(77 Hun, 331.)

BENNETT v. WRIGHT.

(Supreme Court, General Term, First Department.

April 13, 1894.)

Headnote

Injunction—Interference with Mortgaged Property.

Where the complaint in an action to have a mortgage satisfied of record states that it was procured by fraud, the mortgagee will be enjoined, pending the action, from interfering with the mortgaged chattels.

Appeal from special term, ¡New York county.

Action by Ada Bennett against William H. Wright to have certain mortgages satisfied of record. From an order enjoining defendant

p. 454

from interfering or intermeddling with certain chattels mortgaged by the plaintiff to*defendant, defendant appeals. Modified.

The complainant alleges that plaintiff bought $3,200 worth of furniture, fixtures, and chattels of Elliott & Congle, and paid at various times by check, cash, and return of furniture a sum equal to this amount; that five months after th'e purchase of furniture, Elliott & Congle, by their agents, secured through fraud, trick, and device a mortgage on these chattels to defendant of $3,179.51, and at several other times subsequent to this mortgage secured three other mortgages in same manner to defendant amounting, with the first one, to $5,560.21.

Argued before VAN BRUNT, P. J., and FOLLETT, J.

Abram Kling, for appellant.

Otto Irving Wise, for respondent.

The mortgagee having the right, under the power of sale, to foreclose his mortgages without action, their validity can be contested only by an action to have it adjudged that they were null and void, or that they have been paid, as the case may be. The mortgagee can ask to have the mortgages foreclosed in this action, and on such an issue might have an injunction restraining the plaintiff from removing the property from the state, or from dispersing it, to the injury of the mortgagee’s interests. We think, under the allegations, that the mortgagee should be restrained from enforcing the power of sale pending this action, upon condition the plaintiff should be required to give an undertaking, in lieu of those heretofore given, in the sum of $2,000. No costs to either party. Order modified accordingly, without costs.