Bownes v. Weld

3 Daly 253

• Court: New York Court of Common Pleas
• Decided: April 15, 1870
• Status: Published

Opinion

Van Brunt, J.

I do not see how this injunction can be maintained. This action is commenced to set aside the judgments obtained by Weld & Nagle against Wiltse, and also the chattel mortgage executed by Wiltse to Weld & Nagle, as fraudulent as against the creditors of Wiltse.

Such an action cannot be maintained by a creditor at large, but he must show that he has obtained a judgment, and that an execution has been-issued thereon and returned unsatisfied, before equity will afford him relief (Dunlevy v. Tallmadge, 32 N. Y., p. 457). The plaintiff in this action never having exhausted his legal remedy of judgment and execution, cannot have any status in a court of equity, to invoke its aid to test the validity of the judgment and chattel mortgage complained of.

The injunction must be vacated with costs.