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Sickels v. Combs

32 N.Y.S. 181 Court N.Y. Sup. Ct. English

Delivered by GAYS'OB, J.

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p. 181
(10 Misc. Rep. 551.)
SICKELS v. COMBS.
(Supreme Court, Special Term, Kings County.
June, 1894.)

Headnote

Injunction—Adequate Remedy at Law.
Where defendant, under execution against a third person, seized plaintiff’s stock of goods, took possession of her store and of the books and papers of the business, and locked up the store, thus completely interrupting the business, plaintiff’s remedy at law is inadequate, and an injunction will lie.
Action by Catherine L. Sickels against William H. Combs to enjoin defendant from proceeding under an execution against a third person. Judgment for plaintiff.
Sidney Y. Lowell, for plaintiff.
Bichard Marvin, for defendant.

The plaintiff makes out a case for relief injunction. The defendant, a constable, has an execution against another person for $166.42 on a judgment in a justice’s court, and under it has seized the chattels of the plaintiff, consisting of a retail stock in trade, and a horse and wagon used in it, all of the value of $4,000, as the plaintiff alleges, and of the value of $3,000, as the defendant says in his notice of sale. He has also taken possession of the plaintiff’s store, in which she carries on the business, and of the books and papers of the business, and has locked up the store by means of a new lock which he has put on. He has thus completely interrupted the business. The plaintiff shows that the defendant is financially irresponsible for his acts of abuse of process and oppression, and that, by reason of such acts, if they be allowed to continue, she will suffer injury to her business and credit which she will not be able to recover of him, and for which she could not, in any event, recover adequate damages in an action at law. It seems clear that the damages that must result from such an interruption of the plaintiff’s business would be difficult, if not impossible, of accurate estimation in an action at law. It is not enough that there be a remedy at law to prevent a court of equity from intervening, but there must be a reasonably clear and adequate remedy. It should be on the whole as practical and efficient as the remedy in equity; otherwise the latter will be applied. Boyce v. Grundy, 3 Pet. 210 . I see no reason why the impossibility or the extreme uncertainty of getting adequate damages in an action for trespass should not sustain this action. Though no case exactly in point in this state is cited, there are very similar cases involving the same principle. Turner v. Smith, 1 Abb. Prac. (N. S.) 304; Tiernan v. Wilson, 6 Johns. Ch. 411 . The chancellor gave relief in the latter case by setting aside the sale of real estate

p. 182
under execution, on the ground that the conduct of the officer in selling more than was necessary was fraudulent in law. The excessive levy in this case, and the exclusion of the plaintiff from her store, is a criminal offense, and fraudulent in law, and, it seems to me, also in fact. Courts of equity grant relief against the fraudulent use of bona tide judgments. Tomkins v. Tomkins, 11 N. J. Eq. 515 . In other jurisdictions injunctions have been granted as prayed for in this action, and on exactly the same grounds, and text writers point the case out as one for such relief. McCreery v. Sutherland, 23 Md. 471 ; Watson v. Sutherland, 5 Wall. 74 ; High, Inj. § 119; Lawson, Eights, Rem. & Prac. § 3702. It may need to be specially observed that the plaintiff has not an adequate remedy by an action of replevin, for the defendant could regain possession of the goods by giving the undertaking prescribed for that purpose. Let the injunction be made permanent. Ordered accordingly.

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