118 Misc. 576 | N.Y. Sup. Ct. | 1922
This motion to restrain defendant George J. Gould from prosecuting the proceeding instituted by him in the Surrogate’s Court to obtain a decree directing the trustees of the estate of Jay Gould, deceased, to pay him $644,904.20 should be granted. The motion is made by several of the defendants, and after the service of the motion papers upon all the other parties to this action the application is supported by nearly all the parties thereto, including one of the plaintiffs, Mrs. Helen G. Shepard (formerly Helen M. Gould) as a trustee of the estate, and is opposed only by George J. Gould and his adult children, except one, upon the ground, among others, that the court has no power to grant the same. The objection is based largely upon technical grounds and upon the erroneous assumption that a court of equity has no power to restrain or control the acts and conduct of the parties to an equity action of accounting pending before it except in technical compliance with the provisions of the old Code and the Civil Practice Act relating to the granting of a formal injunction order upon the giving of a formal undertaking and that the motion can only be made by a plaintiff and not by a defendant unless he has set up a counterclaim. The broad and comprehensive powers of the Supreme Court were continued by the Constitution (Const. art. VI, § 1) with general jurisdiction in law and equity, including the powers possessed and exercised by the Court of Chancery in England on the 4th of July, 1776, except as limited by the Constitution and the laws of the state. Code Civ. Pro. § 217; Civil Practice Act, § 64. When sitting in equity, for example, in an action for an accounting by trustees where all the parties interested
Ordered accordingly.