Old Staten Island Dyeing Establishment v. Skinner Engine Co.

Majority

p. 116

Old Staten Island Dyeing Establishment, Appellant, v. Skinner Engine Company and Another, Respondents.

Headnote

Equity — irrepwableinjwry, only in case of insolvency — absence of any allegation of insolvency.

When the only ground upon which equity can he called upon to intervene in a case is that a person would suffer irreparable injury, which could only happen in case a certain person should he insolvent, and there is no allegation in the complaint that such person is insolvent, there is no ground for equitable interference.

p. 117

Appeal by tbe plaintiff, Old Staten Island Dyeing Establishment, from an order of tbe Supreme Court, made at tbe New York Special Term and entered in tbe office of tbe clerk of tbe city and county of New York on tbe 6tb day of December, 1893, denying tbe plaintiff’s motion to continue a preliminary injunction/

This action was brought for tbe purpose of restraining tbe prosecution by tbe defendant tbe Skinner Engine Company of an action in tbe City Court of New York against tbe plaintiff, and praying that tlie respective rights, claims and obligations of tbe parties be determined in tbe present action.

The complaint contained, among others, the following allegations:

That in July, 1893, tbe plaintiff made bis promissory note to tbe defendant William Barnhurst for $558.90 in payment of certain work to be thereafter completed by tbe defendant; that thereafter and about August 29, 1893, by reason of tbe defective work of Barnhurst, tbe plaintiff was damaged to tbe extent of $1,500 ; 'that on or about November 10, 1893, tbe defendant Skinner Engine Company commenced an action against the present plaintiff in tbe City Court of New York alleging tbe execution of such note by tbe plaintiff and' tbe transfer thereof for a valuable consideration, before maturity, to the Skinner Engine Company, to which complaint in tbe City Court, tbe present plaintiff put in an answer alleging that Barnhurst was not a party to tbe action in tbe City Court and that tbe present plaintiff did not claim to recover against tbe Skinner Engine Company tbe amount of tbe damages caused by tbe defective work of Barnhurst, but only claimed in tbe City Court action to set off against tbe claim of the Skinner Engine Company tbe plaintiff’s claim for damages caused by such defective work, and that in tbe City Court tbe plaintiff bad no full, adequate and complete remedy.

The complaint in tbe present action further alleged that the Skinner Engine Company threatened and intended to continue in tbe prosecution of the action in tbe City Court, and that tbe plaintiff bad notified Barnbur,st of its damage by reason of bis defective work, and that it would claim tbe same against him; that be knew lie was liable therefor, and thereafter be fraudulently transferred tbe note to tbe Skinner Engine Company for tbe purpose of and intending to deprive tbe plaintiff of tbe benefit of its claim for such damages, by compelling it either to pay the note to tbe said company,

p. 118

or to extinguish said claim by setting it off; that the plaintiff liad no knowledge of his intention to transfer the note until after it had been transferred, of all of which the Skinner Engine Company had knowledge and notice.

G. ZabrisMe, for the appellant.

H. D. Ewing, for the respondent.

The only ground upon which 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 may 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 ten dollars costs and disbursements.

Present — VaN Brunt, P. J., O’BrieN and Parker, JJ.

Order affirmed, with ten dollars costs and disbursements.