Norfolk & New Brunswick Hosiery Co. v. Arnold — 83 N.Y. Sup. Ct. 19

Majority

p. 19

Norfolk and New Brunswick Hosiery Company, Respondent, v. Anna M. Arnold, Appellant.

Headnote

Vexatious action — order restraining its prosecution.

A person in bringing suit upon a contract declared to be valid cannot be said to be acting vexatiously or oppressively; on tlie contrary, he is availing himself of a clear legal right.

An order should not be granted, which restrains a person from prosecuting a certain action, and from bringing any subsequent action, to enforce a contract adjudged to be valid.

Appeal by tlie defendant, Anna M. Arnold, from an order of the Supreme Court, made at the "Westchester County Special Term and entered in tlie office of tlie clerk of the county of Queens on the 24th day of October, 1893, enjoining, the- defendant from taking

p. 20

any further proceedings in a certain action brought by her against the plaintiff, or from bringing any other action against it to enforce a certain contract during the pendency of this action.

Frank F. Blackwell, for the appellant.

Walter J). Edmonds and John Hunter, Jr., for the respondent.

Defendant Arnold has recovered in this court a judgment against this plaintiff upon several installments of a continuous contract, from which judgment an appeal is pending.

Since the first action was begun further installments have become due, to recover which this defendant brings an action in New York Common Pleas.

The plaintiff now brings this suit, praying that defendant he restrained. from prosecuting the action iii the New York Common

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Pleas, and from bringing any subsequent action to enforce tlie contract.

Tlie effect of tlie judgment recovered was to establish tlie validity of the contract. Tlie affirmative relief against it, sought in the first action by the present plaintiff, having been denied, and the contract declared valid, the court could not in that action have restrained 'the successful party from proceeding to enforce the contract. (Spears v. Mathews, 66 N. Y. 127 .) We are at loss to see that the court has in the present action any better right to restrain the successful party from exercising the rights to which it has been declared entitled than it had in the previous action. (Waring v. Yale, 1 Hun, 492 .)

This defendant in bringing suit upon a contract declared to be valid, cannot be said to be acting vexatiously or oppressively; on the contrary, she is availing herself of a clear legal right.

p. 22

Cushman v. Leland ( 93 N. Y. 652 ) does not afford authority for this action. There a trustee in a mortgage to secure a general issue of bonds brought an action to foreclose the mortgage. The holder of one of the bonds, who was a party to the first action, and had therein set up his rights and submitted them to the court, was restrained from prosecuting a separate action for his individual benefit. This was a clear case of a multiplicity of suits.

The prosecution of the individual action was in no sense requisite to protect the plaintiff’s rights, which could be fully protected in the action brought by the trustee.

The order granting an injunction must be reversed, with costs.

Present — Pratt and Cullen, JJ.

Judgment affirmed, with costs.^[1]

Cases cited

Spears v. Mathews 66 N. Y. 127 N.Y. 1876-04-28 p. 21
Cushman v. Leland 93 N. Y. 652 N.Y. 1883-10-09 p. 22