Jewett v. Allen

3 How. Pr. 129

• Court: New York Supreme Court
• Decided: September 15, 1847
• Status: Published

Opinion

Harris, Justice.

The injunction in this ease was improperly allowed, certainly as against the Defendant Allen, and I think also against the judgment debtor himself. All the material allegations in the bill, upon which the right to the injunction rests, and which, if stated positively or proved by an affidavit of their truth annexed to the bill, would have entitled the Plaintiffs to the injunction as broad as it was issued, not only against the judgment debtor, but also against Allen, are qualified by the general statement, that such allegations are only made upon the information and belief of the Plaintiffs. It is well settled that an injunction cannot "be sustained when any of the material facts upon which it rests depend upon information derived from others, unless, in addition to the Plaintiff’s own oath, that he "believes such information to be true, there is annexed to the bill an affidavit of the person from whom he derived the information, swearing to the truth of the statement made in the bill upon such information. (Campbell v. Morrison, 7 Paige, 157 ; Bank of Orleans v. Skinner, 9 Paige, 305.) But in this case, every material allegation upon which the injunction is founded, is stated merely upon information; not even the recovery of the judgment or the return of the execution is stated positively. The injunction against the Defendant Allen must therefore be dissolved with costs.

The Plaintiffs also moved for the usual order of reference, to appoint a receiver “ of all the debts, property, &c., belonging to the said Stone, as set forth in the bill.” As against the Defendant Stone this motion should be granted, but as against the Defendant Allen, the motion is denied, his costs of opposing the motion to abide the event of the suit.