Kirdahi v. Basha

74 N.Y.S. 383 | N.Y. Sup. Ct. | 1902

Scott, J.

The plaintiff on October 24, 1901, obtained a judgment in the City Court of the city of New York, against the defendant Abraham Bechewati. Upon the examination of the judgment debtor in supplementary proceedings it appeared that said debtor had no property real or personal in the State of New York, but that he ivas the owner of real estate in the State of New Jersey. On November eighth, after the recovery of the judgment, Bechewati mortgaged the premises to the defendant Basha. It is claimed by plaintiff that this mortgage was fraudulent and void and given, without consideration, for the sole purpose of frustrating plaintiff’s attempts to obtain, by action in the New Jersey courts, satisfaction of his judgment out of the land in that State. This action is brought in equity to obtain a judgment declaring the mortgage fraudulent and void, compelling the defendant Basha to execute and deliver a satisfaction of it, and restraining the judgment debtor from alienating or incumbering the property pending the action in the New Jersey courts. The present motion is for an injunction,' pendente lite, restraining both defendants from transferring, assigning or conveying the mortgage or the land or any interest in either until the final judgment. While it is, of course, impossible to foresee what judgment the facts, as disclosed on the trial, may justify, it appears probable, from the affidavits read upon the motion, that the plaintiff will be able to show that the mortgage to Basha was made without consideration and for the purpose of defeating plaintiff’s ultimate recovery under his judgment. If this was the purpose of the defendants, they can easily, unless enjoined, carry out that purpose most effectually by assigning the mortgage and selling the land to innocent purchasers. The motion is, however, resisted on the ground that because the land is- in another State this court has no jurisdiction to entertain this action and afford the plaintiff relief. The defendants are in this State and have been served with process. It is a fundamental principle of equity that it acts in personam and not in rem, and from very early times, both in England and in this country it has, upon occasion, decreed specific performance of contracts respecting land in foreign States and countries, and restrained the alienation of such lands. This jurisdiction, although not there first asserted, was firmly established in the well known case of Baltimore v. Penn., 1 Ves. Sr. 444. In this State it has been frequently recognized. In Bailey v. Ryder, 10 N. Y. 363, specific performance was decreed respecting lands in Indiana, and in Gardner v. Ogden, 22 N. Y. 327, a similar judgment was affirmed respecting lands in Illinois. It is true that no decree the court ma^ make can operate directly upon the lands themselves, but it can be rendered effective against the defendants who are within the reach of the court. So far as concerns the mortgage, the plaintiff does not seek a decree which will avoid it ipso facto, as such a decree might do if the mortgage were recorded in this State, but a decree compelling the mortgagee to execute and deliver a release or satisfaction piece, whereby satisfaction of record can be obtained in Hew Jersey. Jurisdiction to make the order applied for is, I think, unquestionable, and the facts in my opinion, warrant it.

Motion granted, with ten dollars costs.