Cushing v. Ruslander

Haight, J. The motion to vacate the injunction was made upon the papers upon which it was issued. They consisted of a complaint verified in the form prescribed by the Code, and an affidavit of John L. Bomer. The allegations of the complaint are upon information and belief, and in substance allege that the plaintiffs, on the 7th day of July, 1887, obtained a judgment against the defendant Moses Buslander for the sum of $2,386.39; that the same was duly docketed, execution issued thereon, and returned unsatisfied; that in the year 1886 Buslander was engaged in business as a manufacturer and dealer in clothing and men’s furnishing goods in the city of Buffalo, U. Y., and also-at Bradford, Pa.; that he borrowed certain sums of money of the defendant the Third ¡National Bank with which to preserve his credit by paying his indebtedness, then maturing, in whole or in part, that he might be enabled to make further purchases by means of credit so obtained, and stock his stores in Buffalo and Bradford, with the intention on his part of thereafter making an assignment of his property, containing preferences, in a large amount, in favor of parties friendly to him, and with the intention, by so doing, to defeat and delay bis other creditors; that such purchases were made, and thereafter judgments were confessed by him in favor of various individuals who were named, among which were four judgments in favor of the defendant the Third national Bank; that, after the levying of executions upon the judgments so confessed upon his stock of goods in the city of Buffalo and in the city of Bradford, he executed and delivered to the defendant G-eorger a general assignment of all his property in trust for creditors, in which the parties to whom judgments had been confessed were preferred. The complaint further alleges that the confessions of judgments were made and given, as was also the assignment, as a part of one and the same Scheme, whereby the defendant Buslander hoped and intended to obtain certain benefits and advantages for himself, and were so made and given after repeated consultations between him, his counsel, and parties representing the Third national Bank, and other defendants, as to the best means of extricating himself from his business embarrassments, and with intent, on his part, to so cover up and manipulate his property that he might, through the co-operation of the judgment creditors preferred as aforesaid, regain the possession of his property, or some part thereof, and deal therewith, and derive benefit and advantage therefrom, and with the intent to put and keep his property out of the reach of the plaintiffs and his other creditors, and to defeat and delay them in the collection of their debts. It appears, further, from the allegations of the complaint, that the stocks of goods so levied upon by the executions were sold, and that the money, or some part thereof, still remains in the hands of the sheriff of Erie county. Judgment was demanded that the judgments so confessed, and that the gen 507 eral assignment, be declared fraudulent and void, and that a receiver be appointed, etc. The injunction obtained restrains the sheriff from paying over the money in his hands derived from such sales until the further order of the court. The affidavit of Mr. Romer, upon which the injunction was also issued, contains a statement as to the allegations contained in a complaint in an action brought by the Third Rational Bank of Buffalo against Charles Georger and others, tending to show that the indebtedness upon which his judgment was confessed was fictitious. He also states in his affidavit that, in case the sheriff pays over the money on the executions to the judgment creditors, it will tend to render any judgment which the plaintiffs may obtain in this action ineffectual, and will greatly embarrass and prejudice the plaintiffs in the enforcement of their rights in this action, and be in violation of the same. It will be observed that the complaint fails to allege that the payment over of the money by the sheriff upon the executions to the judgment creditors will render the action ineffectual, and embarrass and prejudice the plaintiffs; and that it does not demand a temporary or permanent injunction. The Code provides that a temporary injunction may be granted “ 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.” Section 603. A temporary injunction may also be granted “ where it appears, by affidavit, that the defendant, during the pendency of the action, is doing, or procuring or suffering to be done, or threatens or is about to do or to procure, or suffer 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, * * * and where it appears by affidavit that the defendant, during the pendency of the action, threatens or is about to remove or dispose of his property with intent to defraud the plaintiff. ” Section 604. It will be observed that where the application for the injunction depends upon the nature of the action, and is obtained under the former section of the Code quoted, the complaint must show that the plaintiff is entitled to the injunction during the pendency of the action. The complaint in this case, by omitting allegations tending to show that the payment over of the money would produce an injury to the plaintiffs, and render their judgment ineffectual, does not bring it within the requirements of the section which would sustain the injunction granted upon the nature of the action; and we must therefore inquire as to whether a case is made for an injunction under section 604 of the Code. Under this section the provision is that the facts must appear by affidavit. Some facts do appear by affidavit, but not all. The allegations of the complaint in reference to the plaintiffs’ obtaining judgment against the defendant, the confession of judgments to various persons, and so on, do not appear in the affidavit. They only appear in the allegations of the complaint, and we are thus brought to the consideration of the question as to whether the allegations of the complaint can be considered in connection with the affidavit of Mr. Romer. Section 607 of the Code provides that “the order may be granted where it appears to the court or judge, by the affidavit of the plaintiff or any other person, that sufficient ground exists therefor.” The provisions of this section are general, and apply as well to the provisions o£ section 603 as to those of section 604. In the case of Chatterton v. Kreitler, 2 Abb. N. C. 453, it was held that an injunction could be granted, under section 603 of the Code of Civil Procedure, only upon a complaint and an affidavit showing sufficient ground therefor, and not on a verified complaint alone. This is in accord with the former practice under the Code of Procedure. Where the allegations of the complaint are positive, and not on information and belief, and the allegations are sworn to be true, the complaint will be treated as an affidavit; but, where the allegations of the complaint are 508 upon information and belief, the ordinary verification is not sufficient. Bostwick v. Elton, 25 How. Pr. 362; Hecker v. Mayor, etc., 28 How. Pr. 211. It follows that the papers upon which the injunction was granted are not sufficient to sustain the same, and that the order of the special term should be reversed*, and the motion to vacate granted, with $10 costs and disbursements. So ordered. Barker, P. J., and Bradley and Dwight, JJ., concurred.