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Castoriano v. Dupe

64 N.Y. St. Rep. 688 Court N.Y. Decision date 1895-03-12 English

Delivered by Finch, J.

Contents

Majority

p. 688
Solomon Castoriano, Resp’t, v. Rene Dupe, App’lt.
(Court of Appeals,
Filed March 12, 1895.)

Headnote

1. Appeal—Discretion.
An order, granting an injunction during the pendency of an action, is within the discretion of the trial court in a case where it appears, by the complaint, that the plaintiff is entitled to equitable relief.
2. Equity—Subject-matter.
To turn a bill of sale into a collateral security merely, and then to redeem the pledge upon' payment of the debt to be ascertained by an accounting, is clearly proper subject-matter for an equitable action.
3. Same—Adequate remedy at law.
The remedy by replevin is not an adequate remedy in such case, where the amount of the debt is in dispute and wholly uncertain.
Appeal from order of the general term of the court of common pleas for the city and county of New York, which modified, and affirmed as modified, an order of special term granting an injunction upon application by plaintiff.
A. H. Parkhurst, for app’lt; Franklin Pierce, for resp’t.

This appeal is from an order granting an injunction during the pendency of the action. We regard such an order as within the discretion of the trial court in a case where it appears by the complaint that the plaintiff is entitled to equitable relief. Hudson River Telephone Co. v. Watervliet Turnpike Co., 121 N. Y. 397 ; 31 St. Rep. 524 . The complaint here alleges the execution by plaintiff of a bill of sale, absolute on its face, of certain embroideries, and its delivery to the defendant as collateral security for a debt owing to him; that the amount of that debt was by agreement to have been determined at the date of the transfer, but was left undetermined and remains so still; that the defendant claims to hold the goods as absolute owner and asserts a liability

p. 689
-on the part of plaintiff for sums not in truth due and owing; that an accounting is needed to ascertain the true amount of the debt which plaintiff must pay in order to redeem his property; that the embroideries are articles of a peculiar character, whose value can only be reached by private sales to a narrow range of purchasers, and which would be sacrificed by a sale at public auction; that plaintiff has tendered to the defendant the sum of eighteen hundred dollars to redeem the pledged goods, which the defendant has refused and has advertised the property for sale; and that the plaintiff is ready and willing to pay whatever sum may be adjudged to be due from him in order to redeem the pledged goods. Judgment is then demanded that the bill of sale be declared to be collateral to the debt due the defendant; that an accounting be had to settle the amount of the debt; that upon its payment the defendant be required to restore the goods, and that an injunction issué restraining a sale which would make the final relief demanded ineffectual.

There can be no doubt that a sufficient cause of action in equity is stated in the complaint. To turn the bill of sale into a collateral security merely, and then to redeem the pledge upon payment of the debt to be ascertained by an accounting is clearly proper subject-matter for an equitable action. But the appellant principally relies upon the contention that the complaint discloses on its face the fact that plaintiff has an adequate remedy at law, and so there is no ultimate right to equitable relief. The claim is that, having tendered eighteen hundred dollars and demanded a return of the goods, he may sue at law and recover the embroideries by a replevin.. That remedy would perhaps be adequate if there was no question about the amount of the debt, but is certainly not adequate where the amount is in dispute and wholly uncertain. The plaintiff was not bound to peril his whole right by an adoption of the legal remedy, but was at liberty to redeem in equity where an accounting could be had and the ascertained debt be paid.

It follows that the trial court had power to grant the temporary injunction in the exercise of its reasonable discretion, and no appeal lies to this court from the order.

The appeal should be dismissed, with costs.

All concur.

Appeal dismissed.

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