3 How. Pr. 248 | N.Y. Sup. Ct. | 1847
Had the Plaintiffs filed their bill at the time they commenced their action of replevin, it would have been a matter of course to have taken the goods from the possession of Lane, and placed them in the hands of a receiver, to abide the result of the litigation between the parties. The Plaintiffs, by virtue of the assignment from Myers & Co., succeeded to their rights as against Lane, their co-partner, and became entitled to have the co-partnership affairs settled, and if any thing was due from Lane, to have the co-partnership effects, after satisfying the partnership debts, applied to the payment of such balance. Assuming, as we must for the purposes of this motion, that the allegations in the bill are true, Lane was indebted to Myers & Company at the time they made their assignment to the Plaintiffs, to an amount exceeding the value of the goods he then had in his possession. The difficulty in this case arises from the fact that the Plaintiffs are now seeking the aid of this court to restrain the Defendants from proceeding in a suit which they have themselves, perhaps, wrongfully commenced. From the statements in the bill itself, I am inclined to think the Plaintiffs must fail upon a trial of the replevin suit. And yet, if the allegations in the bill are true, the Plaintiffs themselves will be entitled to the whole amount of the judgment which might be recovered against them by Lane in the action of replevin. The question then is, whether, because the Plaintiffs have improperly taken the property of the co-partnership from the possession of Lane by virtue of the writ of replevin, this court will allow Lane to proceed in that suit to recover back the property, when it would be bound at once upon such recovery to interfere to apply the same property to the payment of the amount due from Lane to the Plaintiffs ? I think not; I think the injunction was properly granted. This court have the power to do justice between the parties. If the goods in the possession of Lane, at the time of the assignment, were illegally taken from him by the Plaintiffs, they may be required by the decree in this suit not only to account for the value of the goods, but also to pay such damages as Lane may have sustained in consequence of being unjustly dispossessed of the goods and the costs incurred by him in defending the suit at law. I think, therefore, the motion to dissolve the injunction should be denied. The costs of the motion to abide the result of the suit.
