40 N.J. Eq. 67 | New York Court of Chancery | 1885
This is a bill for an injunction to restrain the defendants from pleading the statute of limitations in a suit brought by the complainant against them as the heirs and devisees of John Ryan,, deceased, to recover certain damages. Ryan and one William Kelly were the executors of John Keighry, deceased. As such, they sold at auction to the complainant, on the 15th of October, 1874, certain land in the city of Elizabeth for $3,900 free of all encumbrances, except a mortgage of $600 then upon the premises.
On the 29th of May, 1875, she, with her husband, filed a •bill in this court against them for specific performance of the ^agreement. They answered, denying her right to a conveyance of the"property. On the 25th of April, 1877, they entered an interlocutory decree in the cause, in substance decreeing that they should specifically perform the agreement, and that the
The defendants’ counsel insists that, inasmuch as no declaration has been filed in the action at law, this suit cannot be maintained, for it does not appear, by the record of that suit, that it is brought to recover damages, as alleged in the bill. There is obviously no substance in the objection. The complainant who brought the action at law states, in the bill, that it is instituted to recover those damages. This suit rests on that averment.
He also insists that the complainant has been at liberty, at all times since she was enjoined from prosecuting the action at law against the executors, to bring an action against them individually, for damages for breach of the contract. It is quite enough to say, on this point, that such a suit would have been in violation of the injunction, which undoubtedly was granted upon the ground that, in view of the decree for specific performance, the prosecution of an action for damages was inequitable. The action was, in fact, against them individually. It was upon a contract made by themselves, and not by the testator.
Nor is the objection that, according to the statements of the bill, the complainant herself is responsible for the delay, because she did not proceed with the suit for specific performance, as she (as the demurrants insist) was fully at liberty to do, well taken. The bill states that she began the suit for specific performance because the executors would neither convey the prop
It is urged, also, that the statements of the bill are not such as to warrant the issuing of an injunction, because it does not appear that the defendants intend to plead the statute of limitations. It was indeed said, in Lutheran Church v. Maschop, 2 Stock. 57, that this court cannot grant an injunction to allay the fears and apprehensions of individuals; that they must show that the acts against which they ask protection are not only threatened, but will, in all probability, be committed to their injury. But it is manifest that, in a case like this, where what is apprehended is the setting up of a defence in an action at law, which, it is entirely certain, the defendants will interpose, unless prevented by this court from so doing, a threat, or even an expression of an intention to do the act, is not necessary to justify the interference of this court. It is laid down that there may be cases in which it will be sufficient ground for granting an injunction, that there is probable ground for believing that, unless it be granted, there is danger of the act or acts being done which the bill seeks to restrain. Joyce Prin. Inj. 59. This is a case of that character. The demurrer will be overruled.