Campbell v. Ernest — 41 N.Y. St. Rep. 571

Majority

p. 571

John J. Campbell, Resp’t, v. William Ernest, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 14, 1891.)

Headnote

Injunction—Affidavit.

An affidavit stating that a debtor has property which he might dispose of, and desires to dispose of to meet his expenses in sickness, is not sufficient to authorize an injunction restraining him from interfering with such property until the further order of the court.

Appeal from so much of an order as granted an injunction.

August 10,1891, John J. Campbell procured an order at special term, Hon. Joseph F. Barnard, presiding, granting leave to bring an action on a judgment, and containing an injunction in the following words: “ And in the mean time, and until the determination of the said action, the said defendant be and he is hereby forbidden to transfer or make any disposition of the property belonging to him, not exempt by law from execution, or in any manner to interfere therewith, until further order in the premises.”

The affidavits showed “ that defendant had become vested with ,a certain interest in real property descended to him as heir at law of his father, which interest is at the present time in litigation in an action in partition to determine the same, and deponent desires to secure the payment of said judgment out of the share of said defendant in such real property.” That an injunction is necessary for the reason that the defendant might defeat the pur

p. 572

poses of this motion, and avoid the payment of any judgment that might be obtained.

By affidavit defendant set up that he had no other property, was sick with consumption, unable to work, and had a family, and that it would be a great hardship and affliction to restrain him from the use of his property, or to make an order which would prevent him from applying it to his necessities.

Esmond & Ward, for app’lt; Strahan & McClung, for resp’t.

This is an appeal from an order which gave leave to the plaintiff to bring an action against the defendant upon a judgment, and restrained the defendant from making any transfer or disposition of his property until further order in the premises, and it follows from the terms of the order that if the court never makes a further order in the premises the defendant can never sell any property belonging to him not exempt from execution, whether the plaintiff succeeds in this action or does noL

Independently of this criticism, however, we think the injunction was improvidently made, and that no case was presented to the court which justified its issuance.

There is no charge that the defendant threatens or is about to remove or dispose of his property with intent to defraud the plaintiff or any other creditor, or that he is about to sell or dispose of the same in any way.

The affidavit upon which the order was made alleges that the defendant has become vested with an interest in real property by descent from his father, and that the plaintiff • desires to secure payment of his judgment out of the share of the defendant such real property.

No charge is made that the defendant intends to do anything in violation of the rights of the plaintiff, and there is no case made which justifies the seizure of the property of the defendant

A rule which would uphold this order would justify the issuance of an injunction in every action on contract at the time of its commencement if the plaintiff could make an affidavit that the defendant was the owner of property.

The portion of the order appealed from which restrains the defendant from disposing of his property should be reversed, with ten dollars costs and disbursements.

Pratt, J., concurs; Barnard, P. J., not sitting.