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App. Div.]

FIRST DEPARTMENT, MARCH TERM, 1899.

ing or arrangement is as to compensation, or as to whether she is under any obligation to pay to this attorney or to any third person for his use and benefit any money as compensation. The conditions under which an order of this kind may be granted are set forth in Harris v. Mutual Life Ins. Co. (20 Civ. Proc. Rep. 192).

We think, therefore, that the order should be reversed, with ten dollars costs and disbursements, and that the motion should be denied, with ten dollars costs.

VAN BRUNT, P. J., BARRETT, RUMSEY and INGRAHAM, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

GILBERT M. HUSTED, Appellant, v. DAVID THOMSON, as Trustee of the Estate of BENJAMIN LORD, Deceased, Respondent, Impleaded with Another.

Additional allowance — when no proper basis therefor is shown.

An action "brought to obtain some sort of relief in respect to a paper in the form of a general release which had been executed by the plaintiff, including an injunction against its use," affords no proper basis for the granting of an additional allowance.

APPEAL by the plaintiff, Gilbert M. Husted, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of February, 1899, granting the defendant David Thomson, as trustee of the estate of Benjamin Lord, deceased, an extra allowance.

A. Edward Woodruff, for the appellant.

George Putnam Smith, for the respondent. O'BRIEN, J.:

In Hanover Ins. Company v. Germania Ins. Company (63 Hun, 275; affd., 138 N. Y. 252) it was said: "It has frequently been determined that where no sum of money is claimed in the pleadings or allowed to the plaintiff, there is nothing upon which an

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FIRST DEPARTMENT, MARCH TERM, 1899.

[Vol. 38. extra allowance can be based and that the court has no power to grant it." The statement as to the nature of this action in the affidavit of the defendant's attorney is, that it "was brought to obtain some sort of relief in respect to a paper in the form of a general release which had been executed by the plaintiff, including an injunction against its use." Taking this statement as correct and with the most favorable view of the nature of the action, it is clear that there was involved therein no proper basis for an allowance. No subjectmatter of money value was involved and, therefore, there was no basis upon which to fix an allowance.

We think the order appealed from should be modified by striking out the provision granting the extra allowance, with ten dollars costs and disbursements of this appeal to the appellant.

VAN BRUNT, P. J., BARRETT, RUMSEY and INGRAHAM, JJ., concurred.

Order modified by striking out the provision granting extra allowance, with ten dollars costs and disbursements of appeal to the appellant.

GEORGE F. VIETOR and Others, Respondents, v. NATHAN LEWIS, ISAAC K. COHN, and ISAAC K. COHN and REBECCA COHN, as Executor and Executrix Respectively of the Goods, Chattels and Creditors of ISAAC COHN, Deceased, Appellants, Impleaded with JACOB LEWIS and MARTIN M. LEWIS, as Surviving Members of the Firm of CHAS. LEWIS & BROS.

Injunction — not granted where the relief sought is contingent upon the happening of a future event.

A temporary injunction, restraining a sheriff from paying over the proceeds of the sale of property on executions under certain judgments, should not be granted in an action brought by a junior judgment creditor of the same judgment debtors to set aside the judgments under which the sale took place on the ground that they are fraudulent, where the real purpose of the action is to tie up the property levied upon under the executions issued upon such judgments, which are claimed to have been confessed in violation of the Bankruptcy Law, until at some future time the plaintiff may institute proceedings in bankruptcy and have the property thus tied up transferred to a trustee, to be appointed in such proceedings, in order to secure its ratable distribution among the creditors of the bankrupt.

App. Div.]

FIRST DEPARtment, March TERM, 1899.

A temporary injunction will not be granted where the plaintiff is not entitled in that action to the final relief sought, and where such relief is not claimed to be absolute but only contingent upon the happening of a future event and upon the termination of proceedings which may thereafter be brought in another court.

APPEAL by the defendants, Nathan Lewis and others, from an order of the Supreme Court, made at New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of November, 1898, granting the plaintiffs' motion to continue the temporary injunction granted herein during the pendency of the action.

An order to show cause granted in this action enjoined the defendants, and each of them, from receiving any portion of the money in the hands of the sheriff realized as the proceeds of the sale of the property of Charles Lewis & Bros. under certain executions mentioned in the complaint, and directed that the sheriff should hold such proceeds until the further order of the court, and Nathan Lewis was enjoined from parting with, or making any disposition whatever of, any of the accounts or proceeds of accounts of the firm of Charles Lewis & Bros. theretofore assigned to him; and it was further asked that such injunction should be continued pending the action, and that a receiver should be appointed of the property of Charles Lewis & Bros. and of the proceeds thereof in the possession of the sheriff.

Samuel Fleischman, for the appellants Cohn.

Sidney H. Stuart, for the appellant Lewis.

Emanuel Blumenstiel, for the respondents.

O'BRIEN, J.:

The plaintiffs are judgment creditors of the firm of Charles Lewis & Bros.; and the defendants, other than the members of the said firm, obtained prior judgments by confession and have issued executions on which levies were made upon some of the firm's assets. Although the relief demanded in the complaint is in form that the judgments of these defendants and the executions issued thereon be set aside as fraudulent and void and that the proceeds be transferred to a receiver to be appointed during the pendency of the action,

FIRST DEPARTMENT, MARCH TERM, 1899.

[Vol. 38. the plaintiffs, on the motion, did not insist upon a receiver, but disclosed the real relief which they sought, namely, to enjoin the payment of the proceeds received by the sheriff from the sale to the defendants having prior judgments till such time as proceedings might be taken in the United States courts in bankruptcy to have a trustee therein appointed who might receive such property or proceeds for equal distribution among the creditors.

No sufficient showing was made to sustain the plaintiffs' charge of fraud or that the defendants are not able financially to respond; but, on the other hand, the defendants' affidavits directly show that the judgments were for honest debts and were obtained in good faith and that the defendants are financially responsible.

Apart, however, from the merits of the controversy or the verity of the judgments, the claim really made here was, that those confessions of judgment and the transfers of account were in violation of certain sections of the Bankruptcy Law; and the purpose of the plaintiffs in seeking an injunction was to tie up the property until, some time thereafter, the other creditors, including these plaintiffs, might institute proceedings in bankruptcy, and, by having the property thus tied up transferred to a trustee to be appointed in such bankruptcy proceedings, secure its ratable distribution among the creditors. In other words it is sought in this action to issue an injunction for the purpose of suspending the rights of the defendants under their judgments for an indefinite time so that the other creditors, if they deem it proper, may take proceedings in the United States courts. And this relief is asked for in an action in which it is perfectly evident that no such final relief can be given.

Without discussing the plaintiffs' right to interfere with property upon which they have no lien or interest to be protected, we think that, under the provisions of the Code of Civil Procedure, a temporary injunction cannot be allowed. The right to final relief is not here claimed to be absolute, but only contingent upon the happening of a future event and the determination of proceedings which may be thereafter brought in the bankruptcy court. It has been many times decided that a temporary injunction will not be granted in such an action where the plaintiff is not entitled to final relief.

The learned judge below was of opinion that an injunction could be granted pursuant to the provisions of section 1876 of the Code.

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App. Div.]

FIRST DEPARTMENT, MARCH TERM, 1899.

The plaintiffs, no doubt, aware of the danger of obtaining too much relief, although it was accorded to them, did not in their order ask for the appointment of a receiver, but contented themselves with an injunction. This caution on their part was justified, for not only were they not entitled to a receiver, but had they called attention to the express language of section 1876 of the Code the learned court. would have seen that the injunction thereby permitted must be "deemed to be one of those specified in section 603." The latter section relates to a case "where the right to an injunction depends upon the nature of the action," and, as already said, an injunction under that section will not be granted unless it appears that the plaintiff is entitled to the final relief for which the action is brought. (McHenry v. Jewett, 90 N. Y. 58, 63.)

As the plaintiffs, therefore, could not obtain and were not entitled to any final relief, there was no warrant for the granting of the temporary injunction, and the order must be reversed, with ten dollars costs and disbursements, and the motion for a temporary injunc tion denied, with ten dollars costs.

VAN BRUNT, P. J., BARRETT, RUMSEY and INGRAHAM, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

In the Matter of the Application of JOHN WHITEHEAD, a Creditor,
Respondent, to Compel an Accounting by CHARLES H. STEINWAY
and Others, as Executors, etc., of WILLIAM STEINWAY, Deceased,
Appellants.

Compulsory accounting by executors — not ordered on the application of one whose claim to be a creditor is disputed by the executors · · exercise of his discretion by the surrogate - silence is not an admission of a claim by executors.

Where the claim of an alleged creditor, who applies to the surrogate to compel an accounting by the executors of a decedent, is disputed by such executors, the surrogate, having no power to order payment of the claim, should not require the executors to render an account.

Good cause is shown to the contrary on such an application, where the executors show that the claim is disputed and allege facts which, if true, would tend to show that the petitioner is not a creditor.

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