143 N.Y.S. 27 | N.Y. App. Div. | 1913
If there was substantial dispute as to the material facts upon which this controversy depends, following the usual policy of this court, we should decline, upon an appeal from an order granting an injunction during the pendency of an action, to review the discretion exercised by the Special Term. But in this case, even if we accept plaintiff’s version of the facts so far as there is dispute respecting the same, it seems clear that he is not entitled to the relief sought, and that the order appealed from should be reversed.
On December 27, 1911, plaintiff borrowed from the Hamilton Trust Company the sum of $20,500, and executed and delivered to it his promissory note for that amount payable on
That the Hamilton Trust Company could have sold said stock in default by plaintiff of his note, is unquestioned. Defendant as its assignee has equal rights. Plaintiff alleges in his complaint that the order above referred to, directing the trust company to assign plaintiff’s notes and the collateral thereto to defendant, was based upon the false and fraudulent representation and pretense that Patrick H. Flynn was the owner of all the collateral stock and bonds, except the Kings County Lighting Company stock. Whether this is the case or not, and whether defendant was entitled to the order which was made, said order is still in force, and the trust company is not complaining of it. Moreover, defendant does not claim title to the notes, and the collateral securities, through the order, but through the assignment to him by the trust company. The order may have been the inducing cause for its action, but it is not the source of defendant’s title. In his brief the learned counsel for plaintiff and respondent says that the question in this case is as to the title of Patrick H. Flynn to certain of the securities thus assigned. It seems to us that
Plaintiff contends that this is not a favorable time to sell the lighting company stock. Whether that is so or not the court has no power upon that ground alone to alter the contract between plaintiff and his pledgee. So far from there being anything unconscionable in defendant’s method of procedure, he might have pursued, under the provisions of the contract, more drastic measures than he has employed.
The order continuing the injunction should be reversed, with ten dollars costs and disbursements, and the motion for an injunction denied, with ten dollars costs.
Thomas, Carr, Rich and Putnam, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion for injunction denied, with ten dollars costs.