Devlin v. Boyd — 40 N.Y. St. Rep. 966

Majority

p. 966

Margaret Devlin, Resp’t, v. Robert Boyd et al., App’lts.

(Supreme Court, General Term, First Department,

Filed October 16, 1891.)

Headnote

Injunction—J udgment—Fraud.

An injunction to restrain proceedings to collect a judgment should not he granted in an action to set aside such judgment on the ground of fraud, where neither the complaint nor the affidavits show facts which would justify a finding of fraud, but only that plaintiff is ignorant in respect to the creation of the debt upon which it was obtained, because it was created by her agent, now dead.

Appeal from order continuing preliminary injunction.

A. Kohn, for app’lts; G. P. Gordel, for resp’t.

This action was brought to set aside a judgment entered in the city court upon the ground that it was fraudulently obtained. Neither the complaint nor the affidavits accompanying the same, upon which it is sought to maintain this injunction, discloses any state of facts that would justify a finding of fraud. All that can be deduced from the affidavits is that the plaintiff is ignorant in respect to the creation of the debt upon which the judgment was obtained, because such debt was created by her agent, who is now dead. The plaintiff further fails in any way to

p. 967

■connect the notes mentioned in the affidavits with the cause of action upon which the judgment was obtained in the city court.

We think that the evidence before the court was insufficient to justify the continuance of the injunction, the statements of the plaintiff being unsupported by any proof.

The order should be reversed, and the preliminary injunction •dissolved, with ten dollars costs and disbursements.

Van Brunt, P. J., Daniels and Ingraham, JJ., concur.