Clark v. Herbert Booth King & Brother Publishing Co.

57 N.Y.S. 975 | N.Y. App. Div. | 1899

McLaughlin, J.:

Upon affidavits and a verified complaint, the plaintiff moved for a temporary injunction and for the appointment of a receiver pendente lite. The motion was denied and the plaintiff has appealed. The action was brought as a judgment creditor’s action under sections 1871 to 1879, and the injunction was sought under section 1876 of the Code of Civil Procedure. Section 1876 provides that a temporary injunction restraining the transfer to any person, or the payment or delivery to the judgment debtor of any money, thing in action or other property or interest, which may by the provisions of the article relating to judgment creditors’" actions be applied' to> the satisfaction of the sum due the plaintiff, may be granted.in the action,', but the injunction and the proceedings before and after'it is granted are governed by the provisions of article 1 of title 2 of chapter 7 of the Code of Civil Procedure, for which purpose the injunction ' is deemed to be one of those specified in section 603.

Section 603 provides that “ where it appears from the complaint that the plaintiff demands and is entitled to a judgment against the defendant, restraining 'the commission or continuance of an act, the commission or continuance of which, during the pendency of the action, wouldprodioce injury to the plaintiff, an injunction order may be granted to restrain it.”

Section 604 provides for the granting of an injunction where the right thereto depends upon facts established by affidavits. Section 607 provides that “ the order may be granted where it appears to the court or judge by the affidavit of the plaintiff,' or any other person, that sufficient grounds exist therefor.” It has been held that this section is as applicable to an injunction granted under section 603 as it is to one granted under section 604. (Cushing v. Ruslander, 49 Hun, 19; Chatterton v. Kreitler, 2 Abb. N. C. 453.) It makes no difference, therefore, under which of the two sections an injunction may be granted; the fact that “sufficient grounds exist therefor ” must be shown by affidavits. The word “ affidavit ” as used in the Code includes a verified pleading in an action or a verified petition or answer in a special proceeding. (§ 3343, subd. 11.) Therefore, a verified complaint, where an injunction is granted under section 603, may be considered as an affidavit under section 607, which requires that the ground for the injunction must appear by affidavit. When a complaint is thus used, however, the evidential force of it must be tested by the same rule that is applied to other affidavits, which is that only such allegations as are sworn to positively, or, if stated on information and belief, where the source of the information and grounds of the belief are given, can be taken as true.

Treating the complaint in the case before us as an affidavit, it, in connection with the other affidavits, established the following facts : That the defendant is a foreign corporation doing business and having an office for the regular transaction of business in this State; that the plaintiff prior to the commencement of this action recovered a judgment against the defendant for $426.78; that the judgment roll was filed and judgment docketed in, and execution issued thereon to the sheriff of the county of New York; that the execution was returned wholly unsatisfied, and the judgment remains unpaid, except that the sum of $100 has been paid to apply thereon; that for several years the defendant has owned and published in the pity of New York a monthly periodical called Fashions / that it is engaged in such city in the printing business, in connection with which it has a large amount of personal property consisting of printing presses, paper-cutting machines, tools, etc., worth at least $15,000; that in June, 1898, it made a mortgage to the Colonial Trust Company to secure the payment of such bonds as it might thereafter issue, not exceeding $20,000 in amount; that the plaintiff does not know and cannot learn the amount of bonds that have been issued under this mortgage, and that on a.certain day the office of the defendant was closed between two and three o’clock in the afternoon. Certain other allegations are made on' information and belief to the effect that the. periodical called Fashions is -of the value of not less than $20;000,and that the defendant lias debts due to it. in an amount of hot less than $5,000, but no grounds for the belief are stated further than that the debts appear upon the books of the defendant, which the plaintiff has. been unable to see or examine. But assuming that all -the facts- alleged are correctly and sufficiently stated, even then the plaintiff was not entitled to an •injunction, much less to the appointment of a receiver. It is nowhere alleged that the defendant, either prior or subsequent to the commencement of the action, has disposed of any of its. property, or has " done, or is about to do, anything to prevent the plaintiff’s enforcing, the payment of his claim. Indeed, it is not even suggested that the defendant has at any time even threatened to .do anything to the prejudice or injury of the plaintiff. In fact, the moving papers absolutely fail to establish what the Code requires before an injunction can be granted, namely, the commission or continuance of some • act Which may produce injury to the plaintiff. The sole purpose of an injunction pendente lite is to prevent the defendant, during the pendency of the action, from committing, or continuing to commit, '•an act which would impair or render ineffectual any judgment that the plaintiff might-obtain; and unless the court can see from the papers presented that some injury may result to.the plaintiff unless the injunction be granted, the application for it will always be denied. This rule was clearly stated by Allen, J., in People v. Canal Board (55 N. Y. 390). He said : “ To entitle ,a plaintiff to prohibition by injunction from a court of equity, either provisional or perpetual, he.must not only show a clear legal and equitable right to the relief demanded, or to some part of it,'and .to which the injunction is essential, but also that some act is being done by the defendant, or is threatened and immiment, which will be destructive • of such right or cause material injury to him.” In short, to justify the.gran ting of the motion for a temporary injunction, the plaintiff must establish that the defendant, unless restrained, will do some act during the pendency of the action which will produce injury to the plaintiff, or that he threatens to do some act in violation of the plaintiff’s right incident to or connected with the subject-matter of the action.

The moving papers^ as we have already seen, did not establish ' that the defendant had done, or threatened, or was about to do, any act which would injure the plaintiff, or tend in any degree to render ineffectual the judgment which he might obtain, and for that reason the motion was properly denied.

The order appealed from must be affirmed, with ten dollars costs and disbursements to the respondent.

Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.