Graves v. Mount Vernon Trust Co.

Second Circuit

Graves v. Mount Vernon Trust Co.

69 F.2d 101, 1934 U.S. App. LEXIS 3450

CourtCourt of Appeals for the Second Circuit

DecidedJanuary 18, 1934

DocketNo. 312

StatusPublished

Cited by6 cases

This text of 69 F.2d 101 (Graves v. Mount Vernon Trust Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Graves v. Mount Vernon Trust Co., 69 F.2d 101, 1934 U.S. App. LEXIS 3450 (2d Cir. 1934).

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Opinion

PER CURIAM.

The question before the district judge rested in his discretion, and we should not disturb his decision unless that discretion was plainly abused. The threatened wrong was ihe approval of the proposed plan by a justice of the New York Supreme Court under section 61-a of the New York Banking Law (Consol. Laws, c. 2), and the distribution of assets in accordance with that plan, if he approved it. His approval could bo a prejudice to the plaintiff only so far as it will become res judicata; we will assume arguendo that it will. But if two suits in personam be pending together, a party to the earlier cannot enjoin prosecution of the later, because judgment in that suit is likely to be rendered sooner. It is immaterial that this will make the earlier suit abortive; both must none the less go on together. Kline v. Burke, Construction Co., 260 (U. S. 226, 43 S. Ct. 79, 67 L. Ed. 226, 24 A. L. R. 1077; Grubb v. Public Utilities, 281 U. S. 470, 476, 50 S. Ct. 374, 74 L. Ed. 972. The suit at bar, whatever else it may be, is in personam; the chance of a conclusive decision by the state judge was therefore no ground for enjoining the proceeding there,

Nor was the chance of distribution of the assets after that decision any better ground for a temporary injunction. If ihe decision of the state court will be res judicata, then Ihe assets ought to he distributed according to it, if the judge approves it. If it will not bo, still the plaintiff’s case is not certain enough to make an injunction peremptory. The allegations of fraud in procuring the consents are all denied in the answer, and the untruth of the allegedly fraudulent statements is not demonstrated; the uneonstitutionality of section 61-a, is surely debatable. After distribution the assets will not bo dissipated, and the new distribution pressed through in the face of the plaintiff’s protest can be unravelled, if unlawful. In all this we can see no such clear abuse of discretion as justifies our intervention. Finally, we do not wish to be understood as holding that an injunction could go in any event against the proceeding before the justice of the Supreme Court. Rev. St. § 720 (Jud. Code § 265 [28 USCA § 379]). That question, we leave unanswered.

Order affirmed.

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PER CURIAM.

The question before the district judge rested in his discretion, and we should not disturb his decision unless that discretion was plainly abused. The threatened wrong was ihe approval of the proposed plan by a justice of the New York Supreme Court under section 61-a of the New York Banking Law (Consol. Laws, c. 2), and the distribution of assets in accordance with that plan, if he approved it. His approval could bo a prejudice to the plaintiff only so far as it will become res judicata; we will assume arguendo that it will. But if two suits in personam be pending together, a party to the earlier cannot enjoin prosecution of the later, because judgment in that suit is likely to be rendered sooner. It is immaterial that this will make the earlier suit abortive; both must none the less go on together. Kline v. Burke, Construction Co., 260 (U. S. 226, 43 S. Ct. 79, 67 L. Ed. 226, 24 A. L. R. 1077; Grubb v. Public Utilities, 281 U. S. 470, 476, 50 S. Ct. 374, 74 L. Ed. 972. The suit at bar, whatever else it may be, is in personam; the chance of a conclusive decision by the state judge was therefore no ground for enjoining the proceeding there,

Nor was the chance of distribution of the assets after that decision any better ground for a temporary injunction. If ihe decision of the state court will be res judicata, then Ihe assets ought to he distributed according to it, if the judge approves it. If it will not bo, still the plaintiff’s case is not certain enough to make an injunction peremptory. The allegations of fraud in procuring the consents are all denied in the answer, and the untruth of the allegedly fraudulent statements is not demonstrated; the uneonstitutionality of section 61-a, is surely debatable. After distribution the assets will not bo dissipated, and the new distribution pressed through in the face of the plaintiff’s protest can be unravelled, if unlawful. In all this we can see no such clear abuse of discretion as justifies our intervention. Finally, we do not wish to be understood as holding that an injunction could go in any event against the proceeding before the justice of the Supreme Court. Rev. St. § 720 (Jud. Code § 265 [28 USCA § 379]). That question, we leave unanswered.

Order affirmed.

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69 F.2d 101, 1934 U.S. App. LEXIS 3450, Counsel Stack Legal Research, https://law.counselstack.com/opinion/graves-v-mount-vernon-trust-co-ca2-1934.

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