Hawke v. Hawke — 56 N.Y. St. Rep. 415

Majority

p. 415

Edward H. Hawke, Resp’t, v. Madison C. Hawke et al., App’lts.

(Supreme Court, General Term, Third Department,

Filed December, 1893.)

Headnote

Injunction—Modification.

Where the appellate court is strongly inclined to reverse an order granting an injunction, but there is a possibility that the plaintiff may be injured by such reversal, and the rights of all parties will be preserved by a modification of the injunction, it may be so modified.

Appeal from an order denying an application to vacate an order granting an injunction.

Henning & McCall, for executors; Edgar T. Brackett, for def’t Wilson ; Charles E. Patterson, for def’t Skelding; Foley & Wing, for pl’ff; J. S. HAmoreaux, for Maria T. Hawke.

Wehave grave doubts as to the propriety of granting the injunction herein, and are strongly disposed to reverse the order granting it, but there is a possibility that the plaintiff may be injured by so doing, and the rights of all parties it seems to us will be preserved by a modification of the injunction.

It appears from the record before us that thé property involved in this litigation amounts to about the sum of $350,000, $100,000 thereof being in personal property, and the remaining $250,000 being in realty.

If the plaintiff succeeds in establishing the invalidity of his father’s will, he will be entitled to one-fourth part of that estate ; it will thus be seen that the realty affords abundant security for his protection, if it remains undisposed of or unencumbered.

The injunction, therefore, is modified so as to restrain the defendants herein from conveying, disposing of, or encumbering any of the real estate of which the testator died possessed, and from conveying and delivering, or passing over any of the said real estate to the devisees or legatees named in the last will and testament of said testator.

It being intended by this modification of the injunction to give the defendants entire control over the principal and interest of the personal property, and of the rents, incomes, and profits of the real estate; subject, of course, to their accounting for the same as the executors of the last will and testament of Edward H. Hawke, deceased, in the event of the plaintiff failing in the action, or of accounting to the plaintiff for his share thereof in the event of his succeeding in establishing the invalidity, of said will; and as so modified, the injunction and order appealed from is affirmed, with ten dollars costs, and printing and other disbursements, to the appellants.

All concur.