Staten Island Dyeing Establishment v. Skinner Engine Co.

Majority

p. 185

Staten Island Dyeing Establishment, App’lt, v. The Skinner Engine Company et al., Resp’ts

(Supreme Court, General Term, First Department,

Filed January 12, 1894.)

Headnote

Injunction—Action on note.

An action against the maker of a note will not be enjoined on the ground that the original holder has not complied with the contract out of which it arose, unless such holder is insolvent.

Appeal from an order denying a motion for an injunction.

O. ZabrisMe, for app’lt; H. D. Swing, for resp’ts.

The only ground upon which the equity can be called upon to intervene, under the circumstances disclosed by the papers upon this appeal, is that the plaintiff will suffer irreparable injury unless the court of equity restrains the prosecution of the action at law. This irreparable injury can be suffered only in case the original holder of the note is unable to respond to a judgment for the damages alleged to have been sustained by his failure to comply with the contract out of which the note in suit in the court of law arose. In the complaint in this action we have been unable to. find any allegation that the original holder of the note, against whom the plaintiff claims to have a cause of action for damages for breach of contract, is insolvent. If he is capable of meeting any judgment which might be obtained against him because of his alleged breach of contract, then by the payment of the note in question to its holders the plaintiff sustains no irreparable damage. Without this allegation, it seems to us, the plaintiff- fails to show any ground for equitable interference. The order should be affirmed, with $10 costs and disbursements.