91 N.Y.S. 1079 | N.Y. App. Div. | 1905
Lead Opinion
This, action was brought against this appellant and various banks and trust companies in the city of Hew York, to require an accounting by the defendants of certain moneys alleged to have been obtained by appellant Elias from the plaintiff. The plaintiff demands that certain real property described- in the complaint and certain personal .property and bank accounts and deposits held by the defendants, in the name or. for the benefit of the defendant Elias!, be impressed - with a trust in favor of the plaintiff, and that the defendants be declared to hold the same as trustees for the plaintiff, and that the defendants and each of them be required to transfer and pay over the same, and any accumulations, rents, profits, interests,' or income to the plaintiff; that the defendants and each of them be perpetually 'enjoined from "interfering with, transferring or disposing of said real estate, or with the personal property and , money so deposited with or held by them; that a receiver be appointed to collect and hold all rents derived from said real estate and to - take and hold the personal property described in the complaint' during the pendency of the action,' and for other and further relief. The complaint alleges that the plaintiff is a man eighty-four year's of age, and for some years in feeble health and has retired from business ; that the defendant Elias is a negro woman, the divorced wife of- one I)avis and is of bad character and reputation; that on the 1st of January, 1896, the defendant Elias had no property nor any pecuniary means; that prior to January, 1896, the plaintiff formed the acquaintance of the defendant Elias and Wás induced by her to have illicit intercourse with her; that after the defendant Elias had induced .the plaintiff to have such illicit intercourse with'.,her; she threatenéd.'tp'expose the plaintiff’s relations with her to her husband and to the plaintiff’s family and friends and acquain tances and thereby subject the plaintiff to public ’scandal and bring him into disrepute
Upon this complaint and an affidavit of the plaintiff, which reaffirmed some-of the allegations of the complaint, and stated that the sources of the deponent’s knowledge of the facts alleged upon information and belief were the statements made by the defendant Elias, the plaintiff applied to the Special Term for an injunction during the pendency' of the action as prayed for in the complaint. In answer to this application, an affidavit of the defendant Elias was submitted which denies all allegations of extortion and -false representations, and there was also submitted an examination of the plaintiff taken as the complainant in a criminal charge against this defendant appellant from which it appears that these allegations in the complaint as to the payment of money to the defendant were made without any knowledge on the part of the plaintiff, and that the allegations of extortion and false representations and fraud were not sustained by any recollection of the plaintiff. There was no competent proof in this record, considering the statement of the plaintiff upon his examination in the criminal proceeding, which would justify a finding of facts sufficient to sustain a cause of action against anybody. The payments are alleged to have extended over a period of eight years. His examination would appear to disclose a man whose mental power was considerably impaired ; but there is no evidence to .show that when the payments were made he was not in full possession of his faculties and knew what he was doing, and voluntarily gave the appellant any sum of money that lie gave
, The whole- case is based solely upon the fact that an old rich man had paid large sums of money to a negro prostitute, and a, court of equity is, therefore, asked to assume that all moneys in the hands of this negro prostitute came from the plaintiff; that she had' procured the money from him by fraud or duress, and that he was entitled to recover from her everything that she had. The order granted' is that during the pendency of the action and until the further order of the court, the defendant, Hannah Elias, be enjoined and restrained from selling, conveying, incumbering, disposing of or otherwise interfering with the real and personal property belonging to her, and the. various banks -and trust, companies were enjoined from paying out any deposits standing in her name, or any other personal property held by them for her, and appointing a receiver of all real and personal property, other than the moneys on deposit in the defendant banks and trust companies, now in the possession or tinder the control of the defendant Elias, her agents or servants, and all stocks, bonds, bank books, mortgages, certificates of deposit, or other evidences of indebtedness belonging to the said' Hannah Elias or held in trust for her or for her account.
The learned judge who granted the injunction puts it upon the ground that the action is brought to recover money paid by the plaintiff because of the defendant’s threats to expose him, and because of the fear that she would carry out those threats if he did not .meet her demands -for money, and that if she acquired the plaintiff’s money in the manner complained of by him, she acquired it feloniously, and money so acquired and the proceeds and profits thereof may be followed by the real owner and recovered, and a court of equity will impose a trust thereon in liis favor. But taking the allegations of. the plaintiff in his complaint and affidavit, and the evi
To justify an injunction the plaintiff must bring the case within subdivision 1 of section 604 of the Code of Civil Procedure. That subdivision provides that “ where it appears by affidavit that the defendant during the pendency-of the action is doing, or procuring, or suffering to be done, * * * an act in violation of the plaintiff’s rights respecting the subject of the action, and tending to render the judgment ineffectual, an injunction order may be granted to restrain him therefrom.” blow, nothing of this kind appears in the affidavit upon which this motion was granted. There is no evidence that the defendant appellant intends to dispose of this property, or that the plaintiff will be entitled to recover any specific property in the possession of the defendants. As I view it, the plaintiff is no more entitled to an injunction in this action than in any case in which a cause of action is alleged against a defendant and the plaintiff then asks to sequestrate all of the defendant’s property so that it may be held to apply to any judgment which 'lie may obtain against the defendant.
For the same reason I think the order appointing the receiver was unjustified. There was no property in the hands ofs this defendant shown to be the property of the plaintiff or to which he was entitled. We may assume that the facts alleged in the complaint are sufficient allegations to sustain a cause of action ; but before the court is justified in appointing a receiver the facts upon which such relief is granted must be proved by competent legal evidence. I think that there was no evidence of the facts necessary to justify the granting of such relief. There was certainly nothing in the relation of these parties to justify a presumption that all the money in the hands of the defendant appellant was obtained from the plaintiff by extortion or duress, and there is an absence of proof that the plaintiff was not in full possession of his faculties, or that whatever money he gave to the defendant appellant was not voluntarily given.
Patterson, McLaughlin and Laughlin, JJ., concurred; Hatch, ' J.,. dissented. , .«•
Dissenting Opinion
(dissenting) :■
■ The conceded facts in this case show that John B, Platt,>tlie plaintiff, some eighteen yearsprior to t-lie present application. became intimate with a negro prostitute named Hannah Elias, and from that time down, to the year 1904 he continuously had illicit-relations- with her. For the’mhst part of that time she was a common prostitute. At the inception of the illicit relations Platt was about sixtysseven years of age and Hannah Elias- about twenty. The evidence ■ discloses that Hannah Elias soon began to exercise a marked influence over Platt. She early threatened to expose the illicit relations' existing between them and to bring him into the scandal and disgrace which publicity would involve; she also excited his fears by representing that he was liable.to physical violence at the hands- of her 'husband, and also threatened to charge him. with. tire paternity of an illegitimate child. By these means and others, and by constantly ministering to the debased passions of Platt, she came in the course" of time to have him almost, if not completely, under her- control and influence. ■ Beginning with the year 1896, when Platt was about seventy-seven years of age, she induced him to advance her $19,075, and in the several years following down- to about May 25,1904, she received annually from him sums of money, the amount in 1903 -being $186,409, and for the portion of the year 1904 $31,533, in all amounting to the sum of -$685,385. Considering the payment of this enormous sum of money by a white man to a negro prostitute,, based upon no other consideration than that of illicit intercourse, it does not" need a'great amount of additional protif to establish the existence of a supreme- and controlling influence of the prostitute over the man and in the latter a weakness as pitiable-as it is deplorable. ' Ho number of written or spoken words can add strength to the condition which these undisputed facts establish, and not a single one of them is denied or controverted "in the slightest degree. It seems to me'that it would be a travesty on
It is said, however, that the testimony of Platt taken upon a ■ criminal proceeding against Hannah Elias tends strongly to establish that the payment of these sums of money was voluntary upon his part, and, therefore, he is not entitled to relief. Perhaps this is true, but the testimony also establishes that Hannah Elias when . the illicit relations began was a young woman about twenty years of age. When the plaintiff began to give her money she was a strong Woman, physically and intellectually. Platt was a' feeble, old man, physically and mentally, and in ¿proportion as he decreased in physical and mental power his gifts to her increased in size. When he testified in the Police Court he was an old man in his dotage, with a rambling intellect, insensible alike to his breach of morality or to his present condition. It presented a spectacle of strength .and viciousness overreaching old age and weakness. The relations themselves and the relative condition of the' parties coupled with the magnitude of the amount extorted establishes beyond perad- • venture that the voluntary character of the gift was such as a tigress exacts from a helpless victim, ii is further said that the -money and property which has been tied up by the injunction order is not shown to have been the property and moneys received hy Hannah Elias from Platt. Upon this subject it is sufficient to say that the complaint avers it to be such property and money, and the affidavit of Hannah Elias does not deny such averments. She alleges ■ that she had considerable property and money prior to 1896, and she admits that during the years specified in the complaint she received divers sums of money, the amount of which-she is.unable to state, and then she denies any intention of disposing of the money or property, except for the support and maintenance of herself and her child. The admitted facts upon this subject which show the character of the woman, her ability and means óf obtaining money and property make it plain that the great bulk of that of which she is now possessed must have come from the source averred in the complaint, and the failure to deny that it did not is an admission of the fact. The liability of waste and improper disposition of the property sufficiently appeared to authorize the exercise of the" ■discretionary power in granting the injunction. ■' (Van Orden v.
The order should, therefore, be affirmed, with ten dollars costs and disbursements.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
