Fullan v. Hooper

66 How. Pr. 75

• Court: New York Supreme Court
• Decided: November 15, 1883
• Status: Published

Opinion

Potter, J.

This is a motion to set aside an injunction granted in this action to restrain the defendant from enforcing a judgment which this defendant obtained against the plaintiff in 1871. The motion must be granted upon three grounds :

First. The plaintiff has a remedy at law (Savage agt. Allen, 54 N. Y., 458, and the cases there cited). The defect here complained of is that the summons was not served in the action in which the judgment was obtained. If such was the case the judgment would be set aside upon motion. That is perhaps the reason that no case is found when an action was brought in equity to set aside such judgment with an injunction to restrain its enforcement.

Second. The whole equity of the complaint is not only denied, but its want of equity is established by a preponderance of proof (40 How. Pr., 233).

Third. The undertaking given by the plaintiff in procuring the injunction is not sufficient for that purpose (Secs. 613 and 812, Code of Civil Procedure).

Motion to vacate injunction granted, with ten dollars costs of motion.