| New York Court of Chancery | Sep 20, 1904
This is an application for a preliminary injunction upon proofs which are directly denied by the defendant’s affidavits. It is admitted that the defendant holds the leases in question by valid assignments, made to him either as owner of the pianos leased, as he claims, or as collateral security for debts owed to him, as the defendant claims. In either situation the defendant appears to have the right to collect the rentals himself, or to employ whom he may choose to collect them for him.
The bill and affidavits show that during the decedent’s, Mason’s, life the defendant employed Mason to collect the rentals, but there is ho showing of any continuing contract obliging the defendant to continue to employ the complainant, administrator of the decedent, Mason, to collect the rentals. Nor does-the fact that Mason, in his lifetime, had, or the complainant, as his administrator, after his death may have, a right to a commission on the amount of rents to be collected, take away from the defendant the right to make the collections, and this is true whether the defendant holds the leases either as absolute owner or as pledgee of them.
There is no allegation that the defendant is insolvent, but there is proof that he is amply able to respond for any moneys which may be found due from him to the complainant.
In an application for a preliminary injunction it is upon the complainant to show that his right is reasonably certain, and also that if the restraint sought be not granted his injury will be irreparable. Camden Horse Railroad Co. v. Citizens’ Coach Co., 29 N. J. Eq. (2 Stew.) 299; Hagerty v. Lee, 45 N. J. Eq. (18 Stew.) 255. There is in this case no exhibition of either of these conditions. The rule to show cause and restraint ad interim should be dismissed.
Some question is raised whether costs should be allowed to the defendant against the complainant, who brings this suit as an administrator.
The rule which saves an administrator from being obliged to pay costs, if unsuccessful, is limited to that class of cases in which the administrator brings suit to assert some right which belonged
Nothing in the proofs shows that the decedent, Mason, had a right to collect the defendant’s rentals any longer than the defendant chose to employ him to do so.
No dispute appears to have arisen in the lifetime of the decedent, Mason, touching the collecting of these rentals. The alleged wrong is claimed to have been done only since the decedent, Mason’s, death by the defendant’s interference with the complainant’s collecting of the rentals.
The proofs show that for some time after the death of the intestate the complainant made some collections of the rentals with'the defendant’s assent, and assigned several of the leases to the defendant, but there is no showing of any contractual obligation upon the defendant to allow the complainant to make these collections. The dispute has arisen because the defendant has now himself undertaken the collection of the moneys coming due on the leases and has forbidden the complainant to make them.
The matter now under consideration for which the complainant seeks redress is thus shown to be an alleged injury to the complainant in the conduct of the business incident to the settlement of his intestate’s estate and not an injury done to the intestate himself in his lifetime.
Under such a showing the defendant is, I think, entitled to costs when he successfully resists the complainant’s attack. I will advise such an order.