Campbell v. Ernest , 41 N.Y. St. Rep. 571 ( 1891 )

Dykman, J.

This is an appeal from an order which gave leave to the plaintiff to bring an action against the defendant upon a judgment, and restrained the defendant from making any transfer or disposition of his property until further order in the premises; and it follows from.the terms of the order that, if the court never makes a further order in the premises, the defendant can never sell any property belonging to him not exempt from execution, whether the plaintiff succeeds in this action or does not. Independently of this criticism, however, we think the injunction was improvidently made, and that no case was presented to the court which justified its issuance. There is no charge that the defendant threatens or is about to remove or dispose of his property with intent to defraud the plaintiff, or any other creditor, or that he is about to sell or dispose of the same in any way. The affidavit upon which the order was made alleges that the defendant has become vested with an interest in real property by descent from his father, and that the plaintiff desires to se-cure payment of his judgment out of the defendant in such real property. lío charge is made that the defendant intends to do anything in violation of the rights of the plaintiff, and there is no case made which justifies the seizure of the property of the defendant. A rule which would uphold this order would justify the issuance of an injunction in every action on contract at the time of its commencement, if the plaintiff could make an affidavit that the defendant was the owner of property. The portion of the order appealed from which restrains the defendant from disposing of his property should be reversed, with $10 costs and disbursements.