Hesse v. Mackaye — 29 N.Y. St. Rep. 233

Majority

p. 233

Christian Von Hesse, as Executor, Resp’t, v. Marie Louise Mackaye, Impleaded, App’lt.

(Supreme Court, General Term, First Department,

Filed January 24, 1890.)

Headnote

Injunction—Will not be granted to restrain payment oe securities EMBRACED IN LITIGATION IN FOREIGN COUNTRY BETWEEN THE PARTIES.

Where plaintiff has submitted himself to the jurisdiction of the courts of a foreign country, in which country the property sought to be affected by this action is situated, no case is made for an injunction restraining defendants from paying it over.

Appeal from an order of the special term granting an injunction pendente lite.

Noah Davis, for app’lt; George H. Starr, for resp’t.

The opinion delivered upon the appeal from the-order denying Mrs. Mackaye’s motion to vacate the publication).

p. 234

proceedings is decisive of this appeal. We have there endeav ored to show that the court is wholly without jurisdiction in this action, so far as Mrs. Mackaye is concerned. We have also decided that the subject-matter is not within the state of ¡New York. The papers upon this appeal supplement some facts which were wanting upon the application to set aside the order of publication. They show, for instance, that some of the bonds in question were payable in the city of ¡New York. But there are no facts which can give vitality to the order of publication, which was made without authority and is consequently void. Apart from this question of jurisdiction, the plaintiff’s papers make out no case ior an injunction. He has submitted himself to the jurisdiction of the courts where the property is situated. If the proceedings already instituted in the foreign tribunals are technically insufficient to settle the question of right upon the merits, the plaintiff is at liberty to institute fresh proceedings specially directed to that <end. His suit here is, upon the facts disclosed in his own papers, unnecessary and oppressive. It is wholly without merit in its present aspect; and the attempt by bringing in and enjoining the corporations, to force Mrs. Mackaye into a jurisdiction foreign to her domicil, and foreign to the situs of the property, cannot be commended.

The order appealed from should be reversed, with ten dollars costs and the usual disbursements, and the injunction dissolved.

Yan Brunt, P. J., and Bartlett, J., concur.