First National Bank v. Navarro

The appellant, as receiver appointed in proceedings supplementary to execution, made application to the special term for an order authorizing him to bring an action to set aside a certain transfer of life insurance policies made by one Jose F. Navarro to Josiah A. Hyland, on the ground that the transfer was made with intent to hinder, delay and defraud creditors of said Navarro, and to employ Charles A. Murphy, Esq., as attorney in said suit, and for an injunction restraining the prosecution of an action now pending in this court by one Jose Del Valle, as

An order was made granting the receiver leave to bring such: an action, but in. all other respects it was denied, and from the-portion of the order denying the other relief asked for the receiver-appeals to this court The application was based on the petition of the receiver appointed- in five several actions, and in two other* actions brought against the said Navarro by the IT. S. Illuminating Company and one M. Yal and another, upon a consent and request signed by H. C. Soop, as vice-president of the plaintiff in. said five actions, and the consent of the plaintiff’s attorney in said other two actions. It will be observed that Mr. Del Yalle is not. a party to any of the actions in which said receiver was appointed.. The receiver was appointed on July 25, 1889, and a judgment*, creditor’s action by Del Yalle was commenced in October, 1889,, over two months after the receiver was appointed. The receiver-states that it was not until the.fall of 1890 that he first-learned that the five policies of insurance were in existence, and that the-same had been assigned to Hyland subject to a loan thereon off $15,000, to secure which the policies had been pledged. The receiver admits that at the same time he knew that an action had! been commenced to set aside such assignment as void by Dell Yalle, and that this action had been tried and had resulted adversely to the latter, who thereafter appealed to this court, which, court reversed the judgment of the court below and granted-a new trial. Thereupon* this application upon petition was made. Although it will thus be observed that the receiver waited for two-years before taking any steps after he ascertained that the policies-were in existence, and á suit was commenced by Del Yalle, he-claims that he is' vested with all the right,, title and interest off said Navarro in and to all his property, and is entitled to these: policies, subject to the amount for -which they are pledged, and,, moreover, that he is the sole party entitled to prosecute an action? to set aside the alleged fraudulent transfer thereof, and he is, therefore, entitled to the injunction of this court restraining the-prosecution of said Del Yalle’s action. .As stated, the application for the injunction was denied, although the court recognized the?* receiver’s right' to prosecute such an action.

If for no other reason, the'delay in moving for the relief now asked for, coupled with the uncertainty as to whether the receiver would ever bring his action, or whether it would ever be prosecuted, were sufficient to justify the court’s denial of an injunction.. Apart, however, from this, we have been referred to no authority by appellant which” would justify the granting of an injunction: on a petition. The provisions of the Code [of Civil Procedure,. §§ 603 and 604, specify in what cases an injunction order may be-granted. These sections are seeming authority for the view that: whether we regard the relief by injunction to depend upon the-nature of the action or to depend upon extrinsic facts, it must,, in the former case, appear from the complaint that plaintiff is entitled thereto, and in the latter that an injunction order is applied for in an action. As to so much of the order appealed from as

We are of opinion, therefore, that the order appealed from .should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., concurs.