Roca v. Byrne — 44 N.Y. St. Rep. 575

Majority

p. 575

Francisco Roca et al., Resp’ts, v. Anna D. Byrne, Adm’rx, Impl’d, App’lt.

(Supreme Court, General Term, First Department,

Filed February 18, 1892.)

Headnote

Injunction—Pendente lite.

In an action to recover the proceeds of certain drafts collected by defendant's intestate, as plaintiffs’ agent, for application to specific obligations, and which were deposited by him in bank, where the defendant denies that they were lo be so applied and alleges a balance due to the intestate, and it appears that he died insolvent, Reid, that it was proper to continue a preliminary injunction restraining the bank from paying out the moneys.

Appeal by defendant Byrne from an order of the special term, ■continuing during the pendency of the action an injunction restraining the Corn Exchange Bank from paying certain moneys ■deposited with the bank.

■ Harmon & Maithewson, for app’lt; Michael H. Gardozo, for resp’ts.

The action is brought by plaintiffs to recover the proceeds of certain drafts transmitted to defendant Byrne’s intestate, who, it is claimed, while acting as the agent of plaintiffs, in a fiduciary capacity, collected the same for the purpose of applying the proceeds thereof to the payment of specific obligations of plaintiffs, and which proceeds were deposited in the Corn Exchange Bank, where they' remained until Byrne’s death. The answer of the defendant admits that certain drafts were collected and received for the plaintiffs, but denies that the same were ¡received and the proceeds thereof collected upon any arrangement

p. 576

or agreement that they should be applied upon specific obligations, of the plaintiffs, but, on the contrary, alleges that between the parties there was a running account, and that at the time of. Byrne’s death a large credit balance existed in favor of Byrne. The complaint and answer are supplemented by affidavits, and the1 issues are thus presented, not only as to the terms and conditions, under which the drafts were received and collected, but also as-to the state of the account between the parties at the time of Byrne’s death. The court is reluctant to try issues of the character presented upon affidavits, and it is only in cases where, from the papers themselves, the position of either side is fully sustained, that it will hazard a determination of all their rights upon a preliminary motion, where the facts are supported only by ecc parte statements. An examination of the papers on appeal fails to disclose such a state of facts as would warrant our deciding all tho questions in dispute in favor of the defendant.

■ The suggestion of appellant that plaintiffs’ allegations being,, for the most part, upon information and belief, are insufficient to sustain an injunction pendente lite, is to be considered together-with the fact that most of the answering affidavits are likewise upon information and belief. The sources of information and the ground of belief of the affiants are set forth, and, in addition, there is the affidavit of one Jones, whose knowledge is stated to have been derived not only from conversations with the deceased,, but also from the fact that he personally collected some of the drafts, the proceeds of which were deposited with the bank, and. which are sought to be reached in this action. We may admit that, as presented, there is much force in the contention of the defendant, that there was no special appropriation of these drafts, but that, for years, there was a running account between the parties. There are, however, other considerations which we think should induce us to uphold the injunction until the fact can be-fully presented at the trial. It is asserted that Byrne, to whose-credit the moneys received from the collection of the drafts were-deposited, died insolvent, and that the payment over of the moneys to the administratrix would, even though plaintiffs should succeed, leave them remediless. The only injury that could result from retaining the moneys in the bank during the pendency of the action to the administratrix, would be the consequent delay. This, to a great extent, could have been obviated by accepting the suggestion of the court below, as to embodying in the order a condition which would have insured a speedy trial. We see no good reason, therefore, for disturbing the order, and; it should accordingly be affirmed, with costs to abide the event.

Van Brunt, P. J. I am of the opinion that it is in furtherance of justice to retain the injunction until the rights of the: parties can be determined after a trial.

Lawrence, J., concurs.