69 N.Y.S. 904 | N.Y. Sup. Ct. | 1901
After notice of motion to cancel the Us pendens was served, the counsel for the respective parties, by voluntary consent, appeared to try the action. Before any proof was given counsel for the defendants moved for the dismissal of the complaint upon the merits, on the ground that taking the allegations of the complaint as true, no equitable relief can be had, and no common-law demand for damages is prayed for. The motion assumes it to be true, as claimed by the plaintiff, that, on the 29th of August, 1899, it agreed to sell and deliver to the plaintiff from eleven to thirteen thousand cords of pulp wood each year for ten years, at nine dollars per cord, which wood was essential to the daily business of the plaintiff in manufacturing paper on the plant recently established by it at a great expenditure of money; that practically the only means whereby the defendant could perform the contract was the use of its thirty-two thousand acres of wild land in Franklin county, which was substantially its only property, and the sale of which and its products substantially the only business calling for the continued existence of the defendant as a corporation; that in the written contract the defendant agreed not to sell any of the lands or pulp wood during the term of the contract so as in any way to jeopardize or prevent its fulfillment and performance of the contract; that it is also agreed that the equity of the plaintiff in the contract was assignable, showing that the parties intended that some equitable lien or right beyond a common-law claim for damages was transferred by the defendant to the plaintiff; that the identity of the pulp wood, which was not bought for purposes of sale or transfer but for absorption into the products of the plaintiff’s work currently and continuously for ten years, was farther recognized by the agreement for ten years’ extension in case the pulp wood was not exhausted on the thirty-two thousand-acre tract at the expiration of the first period of ten years; and that there was barely sufficient pulp wood upon the tract to comply with the agreement for the ten years’ supply with a ten years’ extension; and also by the provision that the defendant was not obliged to deliver a single cord beyond that obtained from the thirty-two thousand-
Upon this verified complaint, and affidavits presented by both parties, the same justice before whom this trial is had granted a preliminary injunction against any transfer or disposition by the defendant of the wood in controversy that would impair the security of its obligation to cut and deliver the wood agreed to be delivered during the ten and possibly twenty years in the future, the object of the contract being the continuous supply of raw material identified and which was claimed by the defendant to be realty until cut and delivered, and which if sold to other parties destroyed the basis of the contract itself as much as would any effectual rescission. 31. Misc. Rep. 695.
On appeal the injunction order was reversed, the court holding that the contract was one for the sale and delivery of personal ■property and that a court of equity will not decree a specific performance of a contract relating to chattels, and also that the difficulties attending the execution of a judgment for specific performance were such that the court would not undertake to direct a judgment which it could not without great difficulty determine was properly complied with on account of the continuous and varied character of the performance for,a long term of years. 55
The reversal of the injunction order, therefore, was based upon two fundamental propositions established in this case by the Appellate Division. The first proposition holds that no action for a specific performance could be decreed, and the second that no injunction would lie. I therefore do not see any escape from holding that the law in this case as at present established forbids any equitable relief, and accordingly grant the motion and dismiss the complaint, with costs.
I doubt the power to cancel the Us pendens except under the "specific terms of section 1674 of the Code of Civil Procedure. That section seems to give this remedy of cancellation only where an action is settled, discontinued or abated, or final judgment is rendered therein against the party filing the notice and the time to appeal has expired, or for an unreasonable neglect to proceed in the action. The situation of the case at present does not con
Motion denied, with costs.