Bennett v. Wright — 60 N.Y. St. Rep. 63

Majority

p. 63

Ada Bennett, Resp’t, v. William H. Wright, App’lt.

(Supreme Court, General Term, First Department,

Filed April 13, 1894.)

Headnote

Injunction—Mortgages.

Where, in an action to have mortgages satisfied of record, the complaint alleges that they were procured by fraud, the mortgagee will be enjoined, pending the action, from enforcing the power of sale.

p. 64

Appeal from an order enjoining defendant from interfering or intermeddling with certain chattels mortgaged by the plaintiff to the defendant.

The complainant alleges that .plaintiff bought- $3,200 worth of furniture, fixtures, and chattels of Elliott & Congle, and paid at various times by check, cash, and return of furniture a sum equal to this amount; that five months after the purchase of furniture, Elliott ¿i Congle, by their agents, secured through fraud, trick and device a mortgage on these chattels to defendant of $3,179.51, and at several other times subsequent to this mortgage secured three other mortgages in same manner to defendant amounting, with the first one, to $5,560.21.

Abram Kling, for app’lt; Otto Irving Wise, for resp’t.

The mortgagee having the right, undpr the power of" sale, to foreclose his mortgages without action, their validity can be contested only by an action to have it adjudged that they were null and void, or that they have been paid, as the case may be. The mortgagee can ask to have the mortgages foreclosed in this action, and on such an issue might have an injunction restraining the plaintiff from removing the property from the state, or from dispersing it, to the injury of the mortgagee’s interests. We think, under the allegations, that the mortgagee should be restrained from enforcing the power of sale pending this action, upon condition that the plaintiff should be required to give an undertaking, in lieu of those heretofore given, in the sum of $2,000.

No costs to either party. Order modified accordingly, without costs.