19 N.Y.S. 123 | N.Y. Sup. Ct. | 1892
This is an action upon a judgment obtained by the plaintiff against the defendant in the supreme court on the 7th day of July, 1875, for $142.27. On the 12th day of September in the year 1891, Benjamin McClung, one of the attorneys for the plaintiff, presented to one of the justices of this court an affidavit made by himself, in which he recited the procurement of an order to show cause why the plaintiff should not have leave to sue upon the judgment, and the appearance of the defendant in opposition to the injunction which was thus sought to restrain him from any disposition of his property pending the action; the presentation of an affidavit of the defendant at that time, of which a copy was annexed; the prevalence of the application before the justice, who made and signed an order in the action granting permission to the plaintiff to bring this action upon the judgment, and also an injunction restraining the defendant from making any transfer or disposition of his property until the determination of this action; the appeal of the defendant from so much of the order as restrained him from transferring his property, and that such appeal would be argued and disposed of at the general term of the court in Brooklyn on the 14th of that month. He uses the following language: “That deponent believes, after reading the said affidavit of William Ernest, a copy of which is hereto annexed as aforesaid, that, should the plaintiff in said action (the plaintiff herein) not be successful in obtaining the affirmance at said general term of the injunction order referred to in said former action, that the said William Ernest, defendant herein, will during the pendency of this action dispose of his property referred to in his said affidavit, with intent to defraud the plaintiff herein, and to render nugatory any proceedings or effort by this plaintiff to obtain payment of his claim in this action.” The annexed affidavit of the defendant, to which reference is made, is as follows:
“Supreme Court.
“ John J. Campbell agt. William Ernest.
“ County of Orange, City of Newburgh—ss.: William Ernest, being duly sworn, says: (1) That he is a married man, residing at the city of Rewburgli,
“Subscribed and sworn to before me this 13th day of August, 1891.
“F. W. Tompkins, Commissioner of Deeds, City of Newburgh.”
Upon these affidavits and the pleadings, which are not printed in the appeal papers, but which mean only, as we assume, an ordinary complaint upon a judgment, an order was made requiring the defendant to show cause at a special term of this court at Poughkeepsie, on the 19th day of September, 1891, why an order should not be made and entered enjoining the defendant from removing or disposing of his property, or making any disposition of the same, during the pendency of this action, not exempt by law from execution, or in any manner to interfere therewith until further order in the premises; and' the order also contained a temporary stay until the determination of that motion. Upon the return day of that order to show cause the motion was beard and granted, and an order was made enjoining and restraining the defendant from removing or disposing of his property not exempt from execution, or making any disposition of the same during the pendency of this action, or in any manner interfering therewith until further order in the premises. The defendant has appealed from the order, and we are required to ascertain whether it can be sustained. The rule of law by which the validity of the order must be tested is this: “ Where it appears by affidavit that the defendant during the pendency of the action is doing or procuring or suffering to be done, or threatens or is about to do or procure or suffer to be done, an act in violation of the plaintiff’s rights, respecting the subject of the action, and tending to render the judgment ineffectual, an injunction order may be granted to restrain him therefrom. ” “ Where it appears by affidavit that the defendant, during the pendency of the action, threatens or is about to remove or dispose of his property, with intent to defraud the plaintiff, an injunction order may be granted to restrain the removal or disposition.” Code Civil Proc. § 604, subds. 1, 2. This statute authorizes the interposition of the court, and the issuance of an injunction order, to restrain the action of a defendant, where it appears by affidavit that during the pendency of the action he is doing or procuring or suffering to be done, or threatens or is about to do or procure or suffer to be done, an act in violation of the plaintiff’s rights respecting the subject of the action, and tending to render the judgment ineffectual; also where it appears by affidavit that the defendant during the pendency of the action threatens or is about to remove or dispose of his
Turning now to the affidavit upon which the order was based, we find it entirely insufficient to sustain it, in any view. It states no fact, and merely says that, after reading the affidavit of the defendant, the deponent believes he will dispose of the property referred to during the pendency of this action, with intent to defraud the plaintiff, and render nugatory any effort of his to obtain payment of his claim in this action. How he could imbibe such a belief alter reading the affidavit it is impossible to conjecture. Certainly there is nothing in the affidavit tending to induce such a conviction. The defendant said there-that it would be a great hardship to him if the court should restrain him from the use of his property, or make any order that would prevent him from applying it to his necessities. There is no expression of a desire or intention to-sell or dispose of the property, and no statement from which such intention can fairly be inferred. But, even though the affiant did entertain such belief after he read the affidavit, he could not transfer his credulity to the judge who made the order. That official required facts to convince the judicial, mind, and upon which he could find that the defendant entertained an intention to make a fraudulent disposition of his property, and it is idle to claim that the affidavit contained any statement to justify such a conclusion, oi-upon which the judge could base any action. The order should be reversed,, with $10 costs and disbursements.