145 N.Y. 250 | NY | 1895
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.,
There can be no doubt that a sufficient cause of action in *253 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.