Howley v. Press

Appellate Division of the Supreme Court of New York

Howley v. Press

127 A.D. 646, 111 N.Y.S. 1080, 1908 N.Y. App. Div. LEXIS 4070

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 8, 1908

StatusPublished

Cited by10 cases

This text of 127 A.D. 646 (Howley v. Press) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Howley v. Press, 127 A.D. 646, 111 N.Y.S. 1080, 1908 N.Y. App. Div. LEXIS 4070 (N.Y. Ct. App. 1908).

Pincite

Opinion

Houghton, J.:

The plaintiff has obtained an injunction during the pendency of the action restraining the defendants from disposing of certain wood cuts, electrotypes and plates of sheet music and songs which it holds as security for an indebtedness and which it threatens to sell, notwithstanding, as is claimed, the indebtedness has been paid. .

No security was given or required of the plaintiff. Section 620 of the Code of Civil Procedure provides that a party applying for an injunction must give an undertaking executed by himself or sureties as the court or judge may direct, to the effect that the plaintiff will pay to the party enjoined such damages, not exceeding a specified sum, as he may sustain by reason of the injunction if the court finally decides that the plaintiff was not entitled thereto. There is no exception to this rule except in favor of certain public officials and municipal corporations. (See Code Civ. Proc. §§ 621, 1990.)

The plaintiff has not appeared on this appeal and does not offer to give such security. Had it done so and had the papers otherwise been sufficient, the defect could have been cured by granting permission to give an undertaking nunc pro tunc. (Manley v. Leggett, 62 Hun, 562.)

But the papers upon' which the injunction was granted do not show any ground for injunctive relief. There is no allegation that the defendant is insolvent and unable to respond in damages, or that the property threatened to be sold does not have an ascertainable value. If the defendants should wrongfully sell plaintiff’s property in alleged satisfaction of a lien which has been paid, plaintiff can be adequately compensated by money damages which it can recover.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion for an injunction denied, with ten dollars costs.

Ingraham, McLaughlin, Laughlin and Scott, JJ., concurred.

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

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Houghton, J.:

The plaintiff has obtained an injunction during the pendency of the action restraining the defendants from disposing of certain wood cuts, electrotypes and plates of sheet music and songs which it holds as security for an indebtedness and which it threatens to sell, notwithstanding, as is claimed, the indebtedness has been paid. .

No security was given or required of the plaintiff. Section 620 of the Code of Civil Procedure provides that a party applying for an injunction must give an undertaking executed by himself or sureties as the court or judge may direct, to the effect that the plaintiff will pay to the party enjoined such damages, not exceeding a specified sum, as he may sustain by reason of the injunction if the court finally decides that the plaintiff was not entitled thereto. There is no exception to this rule except in favor of certain public officials and municipal corporations. (See Code Civ. Proc. §§ 621, 1990.)

The plaintiff has not appeared on this appeal and does not offer to give such security. Had it done so and had the papers otherwise been sufficient, the defect could have been cured by granting permission to give an undertaking nunc pro tunc. (Manley v. Leggett, 62 Hun, 562.)

But the papers upon' which the injunction was granted do not show any ground for injunctive relief. There is no allegation that the defendant is insolvent and unable to respond in damages, or that the property threatened to be sold does not have an ascertainable value. If the defendants should wrongfully sell plaintiff’s property in alleged satisfaction of a lien which has been paid, plaintiff can be adequately compensated by money damages which it can recover.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion for an injunction denied, with ten dollars costs.

Ingraham, McLaughlin, Laughlin and Scott, JJ., concurred.

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

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Bluebook (online)

127 A.D. 646, 111 N.Y.S. 1080, 1908 N.Y. App. Div. LEXIS 4070, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howley-v-press-nyappdiv-1908.

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