Brockway v. Miller

An injunction order may be issued in the following cases: (a) Where it appears from the complaint that the plaintiff demands and is entitled to a judgment against the defendant restraining the commission or continuance of an act the commission or continuance of which during the pendency of the action would produce injury to the plaintiff. (Code Civ. Proc. § 603); (b) in an action where it appears by affidavit that the ' Li defendant during the pendency of the action is doing or pro*240curing or suffering to be done, or threatens or is about to do or to procure or suffejr to be done, an act in violation of' the plaintiff’s rights respecting the subject of the action, and tend- ' ing to render the judgment ineffectual; or where it appears by affidavit that the defendant during the pendency of the action threatens or is about'. to remove or to dispose of his property with intent to defraud ¡the plaintiff (Id. § 604). As to the time when such order may be granted, it may be granted to accompany the summons, or! at any time after the commencement of. .the action and before final judgment. (Id. § 608.)

On December 29,1910, a justice of the Supreme Court granted an order enjoining the ¡Fifth National Bank of New York from paying over to Emma ÍB. Miller, or her' order, or to Edward I. Herbst, attorney, any of the proceeds of a- certain cheek, made ' by the New York and Brooklyn Brewing Company on the Com Exchange Barde, Myrtle avenue branch, payable to Edward I. Herbst, attorney, for $500, on the 20th day of December, 1910. A copy of this order was served upon the Fifth National Bank on the same day, Neither affidavit, summons, complaint, copy undertaking, or any cjther papers were served with it. ■ The defendant Emma B. Miller appeared specially on motion to vacate such order, and from the order denying sucb motion this appeal is taken.'■ j

The validity of the order is attacked upon three grounds: (1) That at the time it was signed po jurisdiction existed on thé part of the learned justice who. signed the same to make any was, therefore, void; (2) that it does 1 the grounds hereinbefore stated authorizing the issuing of, an injunction order existed; (3) that the order is irregular for failure to state'the grounds thereof. such order, and that not appear that any of

• An interlocutory injimetion can only issue when authorized by statute. (Matter of Dietz, 138 App. Div. 283.) The only paper which séems to have been presented to the. justice when the order was-made, and which is recited therein, is a petition of the plaintiff and an. undertaking. It does not appear that any summons had been issued, and so far as .does appear no summons was issued or served upon any of the parties to this action until several days after the granting of such injunction order; when a copy of such summons was served on the defend*241ant Emma B. Miller. It does not appear that any complaint in the action has ever been prepared or served, and it is, therefore, impossible to tell whether the injunction is sought under the provisions of section 603 or section 604 of the Code above referred to. If the petition of plaintiff be treated as an affidavit, it does not authorize the granting of the injunction order, even if a summons had been issued at the time that the injunction was obtained, and an action were pending against the above-named defendants. From the petition, each allegation in which is made upon information and belief, it may be gathered that plaintiff was appointed receiver in proceedings supplementary to execution issued under two judgments recovered against Emil B,' Miller, Who is not a party to this action; that Miller had entered, into a contract with one Muhins to manufacture and deliver to him certain barroom and saloon fixtures at the premises 5123 Third avenue in the borough of Brooklyn, and that Mullins was indebted to him on account thereof in the sum of $4,200; and that the defendant Emma B. Miller had made a chattel mortgage upon such fixtures. The petition further states, also upon information and belief, that she had no title to these fixtures, but the sources of deponent’s information or the grounds of his belief are not stated. The petition further states that the mortgage was foreclosed; that thereafter Walter Miller, the mortgagee named therein, and the said Emma B. Miller, sold or attempted to sell the said fixtures to the New York and Brooklyn Brewing Company, payment to be made partly in cash and partly in promissory notes; that one of these notes became due on September 30, 1910, and being unpaid, an action was commenced .thereon which, about December 20, 1910, was settled by the giving of a check for $500 to the order of Edward I. Herbst, attorney. It is the negotiation of this check which the order seeks to enjoin.

If a complaint had been presented containing the same allegations as the petition, plaintiff would not have been entitled to enjoin the collection and payment of this check. It does not appear that the judgment debtor, Emil B. Miller, had title to these fixtures at the time that the judgments were recovered; *242on the contrary, it appears that.he had sold them to Mullins, and that Mullins was indebted to him on account thereof in the sum of $4,200, and th^ validity of this sale is not attacked. If Emma B. Miller'has made a mortgage, or attempted to sell chattels which belonged tjo Mullins and not' to her, that is a matter between her and the owner of these chattels, and it is no concern of Emil B. Miller or of plaintiff as receiver.

In addition, no grounds are stated in the injunction order for the issuing of the samp, and this is a fatal defect. (Code Civ. Proc. § 610; Meyer v. Moress, 106 App. Div. 556.)

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to vacate the injunction granted.. ' ' •

Jerks, P. J., Hirschbeeg, Thomas and Carr, JJ., concurred.

Order reversed, with tin dollars costs arid disbursements,- and .motion, to vacate injunction granted.