Richards v. Goldberg — 57 N.Y. St. Rep. 565

Majority

p. 565

Rachel Richards, Resp’t, v. Samuel Goldberg, Impleaded, etc., App’lt.

(New York Common Pleas, General Term,

Filed March 5, 1894.)

Headnote

1. Injunction—Secueity.

Security in the form prescribed by § 611 of the Code is not required, in order to stay the trial of an action to recover a sum of money only, unless issue has been joined therein.

3. Same—Recital.

An injunction order, which recites the several acts of the defendant complained of, followed by a statement in the language of the section, contains a sufficient statement under §610 of the Code.

Appeal by defendant from an order made at special term of this court, containing an injunction against the commission by defendant, during the pendency of this action, of the following acts: (1) Disposing of a lease and contract of purchase of premises 248 East Broadway; (2) Prosecuting an action against plaintiff for rent of part of said premises now pending in the fifth district court; (3) Commencing any action against her for rent or use and occupation, or any summary proceedings to dispossess her.

Ernest T. Fellows {Arthur B. Wright of counsel) for app’lt; A. B. Berriclc, for resp’t.

The learned judge at special term properly disposed of this motion upon the merits by continuing the injunction ; for the preponderance of proof, in the affidavits, is with the plaintiff, that when defendant took the lease and contract of sale in his own name, it was in contemplation of a joint interest therein belonging to the plaintiff. He expressly swears that he would not take the lease and contract until his father said he would get a party to take a half interest with him, and that after the instruments were executed his father disclosed the plaintiff as the party to whom he referred, and defendant was informed by his father, and believes and states the fact to be, that the

p. 566

plaintiff knew and desired that the lease and contract should be taken in his name.

These admission clearly establish the interest of plaintiff at the time the instruments were executed, and that defendant acted on her behalf as well as his own in obtaining them; and the terms of the contract in writing, which he subsequently proposed for her signature, reciting that she was, in effect, so interested from the beginning is confirmation of the plaintiff’s contention. The case' of the plaintiff, was, therefore, made out as strongly by defendant’s affidavit as her own, and there was no course left but to grant her motion.

The point is made that the court should have required, as a preliminary to the granting of the injunction, which restrained, among other acts, the prosecution df an action for rent, security in the form prescribed by § 611 of the Code when it is desired to stay the trial of an action in which the complaint demands judgment for a sum of money only, after issue has been joined therein, viz.: An undertaking to pay all damages and costs which may be recovered in that action, and also all damages and costs in the injunction action. It nowhere appears in the record before us, however, that issue has been joined in the action for rent, and, therefore, the provisions of § 611 do not apply.

• Objection is made that the injunction order does not contain a sufficient statement of the grounds of the injunction, as requirer by § 610 of the Code. The order recites the several acts of the defendant complained of, followed by a statement in the language of the section, and that is undoubtedly sufficient. It plainly apprises the reader of the grounds of the injunction.

Order appealed from affirmed with costs. All concur.