55 F. 356 | 2d Cir. | 1893
Lead Opinion
This action was brought in the su-
preme court of the state of New York, and was removed from that court to the United States circuit court for the eastern district of New York. Prior to the removal, the state court had granted an injunction restraining the defendants from transferring, disposing of, or in any wise interfering with, certain certificates of stock, representing 8,102 shares of the Fred Hower Brewing Company, during the pendency of the action. After the removal the defendants moved in the circuit court to dissolve the injunction. The circuit court, held by Judge Benedict, after hearing the parties, made an order denying the motion to dissolve, and continuing the injunction in force. The defendants have appealed from this order.
The chief contention of the appellants is that the complainant has an adequate remedy at law, and therefore cannot maintain a suit in equity to restrain the defendants from enforcing the note or disposing of the stock. If it were only a question of the note, this objection would no doubt be a sound one. All the equities could be pleaded against the payee, or, the note being now past due, against any one to whom he might transfer it. But the fact that a sale of the stock, which, for all that appears in the papers, might clothe the purchaser thereof with a title superior to complainant’s equities, puts the case in an entirely different aspect. The stock is apparently of uncertain value; it represents a controlling interest in the corporation; and, in view of these circumstances, the possible recovery in any action for damages for its conversion would not be an adequate remedy. The theory of damages for the conversion of such property is that the sum recovered by plaintiff will put Mm financially in the position he was in before the conversion, but it is by no means certain that any possible recovery in such action would give to the plaintiff the equivalent of the controlling interest in the corporation.
Nor would an action for replevin lie. Complainant has no right to the possession of the stock. Upon the facts as set out in the bill he parted with his possession under an agreement by wMch the right to such possession was transferred to another party until complainant should have paid $25,033, and he had five years in which to pay such sum. He could maintain no action to recover the possession of the stock without tendering the $25,033 for which it was pledged. Such an action, requiring such anticipation of his promised payment, is not an adequate remedy. He is entitled to hold the defendant to his agreement, without himself assuming any greater burden than he originally undertook. As the damage which would probably he suffered by the plaintiff if the securities were sold is irreparable, and the bill and affidavits make out a case for equitable relief, and no' irreparable injury would result to the defendant should the injunction be continued until all the facts are , fully brought out upon the trial, the order appealed from should be affirmed.
On behalf of the defendant the First National Bank of the City of New York it is also insisted that under section 5242, Rev. St. U. S., there was no power in the state court to issue this injunction, nor in the United States circuit court to continue it. The practical effect of Judge Benedict’s order was to enjoin the defendants pending the litigation, and, if that court had the power to issue an injunction against a national bank, such order should be sustained, irrespective of the question whether the state court which originally enjoined the defendant bank bad or had not power to make such an order. The proMbition upon which the defendant bank relies is found at the close of section 5242, Rev. St. U. S., in the following language: “No attachment, injunction, or execution shall be issued against such association [a national bank] or its property before
The order appealed front should be affirmed, with costs.
Dissenting Opinion
(dissenting.) I dissent from the opinión of the court upon the ground that, upon the case made by the plain iiiFs bill, he is not entiiled to any equitable relief. There may be facts winch sire not u.:i¡od In the bill, by reason of which he may be entitled to resort to a court of equity, but ids rights ave to be considera! upon the facia as be lias presented them. Of course, he should not hare the preliminary remedy if lie is not entities to the final one. Upon the statement of it, the case in cno in which, he has a complete end adequate remedy at law by am ac lion of replevin for the recovery of the certificates. Replevin ties for all species of tangible properly, whnllier ehoses in possession or in fiction, — for boobs of aoeouni, vouchers, and written instruments of every kind, as well an for negotiable secnriiies. Bank v. Bingham, 118 27. Y. 349, 23 A, A. Kep. 189; Baker v. Rales, 16 if res. 147: Drain» v. Auerbach, 87 Minn. 505, 85 '17. W. Rep. 367; Shivery v. Hays, ¡50 Iowa, 25? T’lentge v. Priest, 33 Mo. 549; Roberts v. Bunk, ’ !9 Pa. St. 73; Gibbs v. Usher, 1 Holmes, 343. Buck an action is the obvious, its well as the complete and adequate, nenu-dy for the wrongs set forth, if, as the plaintiff alleges, the stock note was merely an accommodation note, and the elevator company repudiates die agreement to that effect, and insists upon collecting the note, and proposes to sell the collateral pledged by it ■«» satisfy flic amount. I cannot see any obstacle in the way of mninteistfeg such an action. It seems to me there is no force in the suggestion that the elevator company could defeat the action upon the theory that it is entitled to the possession of the certifica tes until the payment of the purchase money for the shares Twugbt of it by plaintiff. By hairing ¡he stock note, and asserting a right to enforce it as a valid obligation of the plaintiff, the elevator company is estopped, until it has restored the certificates to