Van Sinderen v. Lawrence — 20 N.Y. St. Rep. 76

Majority

p. 76

Adrian Van Sinderen, as Trustee, etc., Resp’t, v. William B. Lawrence, App’lt.

(Supreme Court, General Term, First Department,

Filed November 24, 1888.)

Headnote

Injunction restraining surrogate—When properly granted.

The surrogate, on the petition of the defendant, having ordered the plaintiff as testamentary trustee to account, on such accounting, the validity of the general release executed and delivered by the defendant to the plaintiff being called in question, and the surrogate having ordered the accounting, and proceeded notwithstanding said release; it was proper in connection with the action brought in the supreme court to determine the validity and effect of said release, an injunction restraining the parties from proceeding with the aforesaid accounting was proper.

Appeal from an order continuing an injunction. The statement of facts necessary for the understanding of this opinion will be found in the opinion in this matter which is ante, page 72.

Albert Bach, for appl’t; Eugene L. Richards, Jr., for resp’t.

The injunction was issued to enjoin and restrain the defendant, his agents, etc., during the pendency of this action, from taking any further steps in the surrogate’s court, upon or relating to, or in attempted violation of the general release executed and delivered by .the defendant to the plaintiff. The right of the plaintiff to this injunction depended upon the same facts as his right to maintain and prosecute the action itself, to obtain an adjudication sustaining, or controlling, the effect of the release in controversy. That such an action may be maintained, has the approval and authority of Wright v. Fleming ( 76 N. Y., 517 ), as well as the other authorities which have been mentioned in the disposition of the appeal in this action from the interlocutory judgment. It is unnecessary to go over the case again for the disposition of this appeal. As the surrogate and the referee appointed' by him was without 'the power to hear and dispose of the controversy which has arisen concerning the release, it followed that the plaintiff was entitled to have it heard and determined in this action. And as all the necessary facts had been alleged and set forth Upon which that determination may be made, and disclosing its necessity, the order continuing the injunction was

p. 77

right, and it should be affirmed with ten dollars costs, and also the disbursements.

Van Brunt; P. J., and Brady, J., concur.