Hendricks v. Morrill — 25 N.Y. St. Rep. 130

Majority

p. 130

Joshua Hendricks, Resp’t, v. Amos Morrill et al., App’lts.

(Supreme Court, General Term, First Department,

Filed July 9, 1889.)

Headnote

Injunction—Pendente lite.

Where attaching creditors make a prima facie case of fraud in the entry of a djudgment against the debtor, on an offer of judgment, an injunction impounding the proceeds of a sale on execution issued on such judgment, pending the trial of the suit to set the judgment aside, is proper.

Appeal from order continuing injunction.

J. B. Mullaly, for app’lts; A. Kling, for resp’t.

The order merely impounds the proceeds of the execution sale until the questions arising between the execution and attaching creditors have been settled on a regular trial.

The plaintiffs here, the attaching creditors, have certainly made out a prima facie case sufficient to justify the retention of such proceeds pendente lite.

Without passing upon the merits in any way, we think under these circumstances, that the proceeds should be held to await the final determination of the action. The facts bring the case within the principle of Kingsley v. First National Bank of Bath ( 31 Hun., 329 ), and the injunction pendente lite is supported by Keller v. Payne (16 N. Y. State Rep., 245), and cases there cited.

The order should be affirmed, with ten dollars costs and disbursements.