By the Court. Woodruff, J.
The complaint in this action is founded upon a claim by the plaintiff, that the defendant, as the agent of the former, under a full authority for that purpose, sold two thirds of the ship “ Mischief,” and as such agent, being trustee for the plaintiff, received the proceeds of the sale and brought them to Hew York, and refuses to pay them over to the plaintiff, but has placed them on deposit with his banker. And upon an averment that he has reason to apprehend, and does apprehend, a misappropriation and disposal of the proceeds by the defendant, and a removal thereof from the reach of the process of the court, he prays an injunction and receiver. The complaint also prays an account of the earnings of the ship while in the defendant’s possession unsold.
An injunction being ordered, a motion was made at the special term to dissolve the injunction, which being granted in part, the plaintiff has appealed to the general term.
In support of the motion to dissolve the injunction, it is urged, assuming that the defendant is the plaintiff’s agent and trustee, and as such, liable to account, and assuming also that he holds the plaintiff’s property, received by him in the special agency with which he was intrusted, and which property he, in violation of his duty, and in fraud of the plaintiff’s rights, refuses to account for and pay over, that inasmuch as a bill of discovery is not now permitted by our Code of Procedure, there is no ground here for any equitable relief. That the cause is to be regarded as a mere action at law, and that unless the case made be one in which, if the action was an ordinary action to recover a debt, an injunction would, under [294]*294section 219 of the Code, be proper, e. g. when the defendant is about to dispose or remove his property to defraud his creditors, or to do some other act in violation of the plaintiff’s rights, tending to render the judgment ineffectual, the injunction cannot be sustained.
It is, I apprehend, an entire mistake to say that because the bill for a discovery is no longer to be used, therefore a plaintiff cannot have a discovery. It is only the mode of obtaining a discovery that is altered. It is no longer necessary to apply by bill to a court of equity for a discovery where that alone is sought. The defendant may now be orally examined by order. But where the equitable power of the court is invoked to compel an accounting, to enforce a trust, to prevent a fraudulent misapplication of funds, or a misappropriation of property held as trustee, the jurisdiction of the court is as ample as it was before the Code. And the circumstance, that in ascertaining the facts by which the exercise of that jurisdiction is to be guided, the defendant may now be orally examined, and that discovery by answer cannot be compelled for the mere purpose of discovery, is quite immaterial. Even now the right of appeal to the defendant’s conscience, as to all the grounds of relief, is preserved as fully as before the Code. And, that jurisdiction upon the grounds just mentioned existed before the Code, is not questioned.
But it is urged that under the Code, if a clear case of fraud and breach of trust are established, these only entitle the complainant to an order of arrest, and not to an injunction.
I find no warrant for this limitation of the power of the court. It is true that in an action for money had and received by the defendant in a fiduciary capacity, or where the defendant has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is founded, he may be arrested ; but nothing in the chapter of the Code relating to that subject (chap. 1, title 7, part 2), makes that the sole and only mode of procedure. If the case was one which furnished grounds for equitable interposition by injunction, the right to resort, at the plaintiff’s option, to the ordinary legal process by [295]*295arrest would not affect the power to enjoin. It may be that the court would not arrest the person and enjoin the act which was threatened, but that I apprehend would be a question of discretion which the court would take care to exercise so as not to work oppression or unnecessary hardship.
Once more, it is insisted that by the Code (§ 219) the injunction cannot be sustained unless the court are satisfied that the defendant is about to remove his property, or do some other act, pending the litigation, calculated to prejudice the plaintiff.
This clause of the Code is held to relate to an injunction applied for after an action has been commenced, and where the grounds of the injunction appear during the litigation. (See Perkins v. Warren, 6 How. Pr. R. 341; Malcolm v. Miller, 6 Pr. R. 456), and does not apply to a ground for injunction "which existed at or before the action was brought.
The language of the section referred to appears to me to be ample to sustain the power exercised in this case, e. g. when it shall appear by the complaint that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of some act, the commission or continuance of which, during the litigation, would produce injury to the plaintiff, etc., an injunction may be granted, etc.
This very general language would seem to provide for every case in which a temporary injunction was proper before the Code. Indeed, it was not, in my opinion, the design of the legislature to abridge the power of the courts, as courts of equity, to grant that provisional relief theretofore had by injunction. On the contrary, the last clause of section 219 is a plain enlargement of the power.
The law recognizes the existence, and use of this remedy, and changes its form to an order of the court or judge, instead of requiring the unnecessary additional form of a writ. And it has been repeatedly held that the Code has not impaired the general power of the court to enjoin where an injunction was before proper. (Howard v. Ellis, 4 Sand. 369; Malcolm v. Miller, 6 How. Pr. R. 456.) Hence, in an action between part[296]*296ners, brought for the purpose of a dissolution and a settlement of the co-partnership affairs, the payment of the debts, etc., an injunction to restrain either, and even both, of the co-partners, may be as proper now as it ever was. (See McCracken v. Ware, 1 C. R. 215.) Nor is it denied that an injunction would be granted now as before to restrain a trustee or agent when he attempts to transfer the funds or property in his hands to the prejudice of the party beneficially interested, or to restrain a party who is abusing his trust. Nor generally to restrain fraud, and protect and xiphoid a trust against the wrong of a trustee.
That the present defendant, in so far as he has received the proceeds of two thirds of the ship in question, was a trustee for the plaintiff is not denied. And entertaining the views above suggested, I perceive no lack of jurisdiction, nor any reason in the provisions of the Code, for denying the injunction, if the facts are as claimed by the plaintiff.
In respect to the merits, I adopt'fully the language of the first judge at special term, that when the claim is for the proceeds of a sale made by the defendant, as agent for the plaintiff, in the hands of the agent, and identified as the very proceeds of the plaintiff’s property, but which the defendant refuses to delivei’, “
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By the Court. Woodruff, J.
The complaint in this action is founded upon a claim by the plaintiff, that the defendant, as the agent of the former, under a full authority for that purpose, sold two thirds of the ship “ Mischief,” and as such agent, being trustee for the plaintiff, received the proceeds of the sale and brought them to Hew York, and refuses to pay them over to the plaintiff, but has placed them on deposit with his banker. And upon an averment that he has reason to apprehend, and does apprehend, a misappropriation and disposal of the proceeds by the defendant, and a removal thereof from the reach of the process of the court, he prays an injunction and receiver. The complaint also prays an account of the earnings of the ship while in the defendant’s possession unsold.
An injunction being ordered, a motion was made at the special term to dissolve the injunction, which being granted in part, the plaintiff has appealed to the general term.
In support of the motion to dissolve the injunction, it is urged, assuming that the defendant is the plaintiff’s agent and trustee, and as such, liable to account, and assuming also that he holds the plaintiff’s property, received by him in the special agency with which he was intrusted, and which property he, in violation of his duty, and in fraud of the plaintiff’s rights, refuses to account for and pay over, that inasmuch as a bill of discovery is not now permitted by our Code of Procedure, there is no ground here for any equitable relief. That the cause is to be regarded as a mere action at law, and that unless the case made be one in which, if the action was an ordinary action to recover a debt, an injunction would, under [294]*294section 219 of the Code, be proper, e. g. when the defendant is about to dispose or remove his property to defraud his creditors, or to do some other act in violation of the plaintiff’s rights, tending to render the judgment ineffectual, the injunction cannot be sustained.
It is, I apprehend, an entire mistake to say that because the bill for a discovery is no longer to be used, therefore a plaintiff cannot have a discovery. It is only the mode of obtaining a discovery that is altered. It is no longer necessary to apply by bill to a court of equity for a discovery where that alone is sought. The defendant may now be orally examined by order. But where the equitable power of the court is invoked to compel an accounting, to enforce a trust, to prevent a fraudulent misapplication of funds, or a misappropriation of property held as trustee, the jurisdiction of the court is as ample as it was before the Code. And the circumstance, that in ascertaining the facts by which the exercise of that jurisdiction is to be guided, the defendant may now be orally examined, and that discovery by answer cannot be compelled for the mere purpose of discovery, is quite immaterial. Even now the right of appeal to the defendant’s conscience, as to all the grounds of relief, is preserved as fully as before the Code. And, that jurisdiction upon the grounds just mentioned existed before the Code, is not questioned.
But it is urged that under the Code, if a clear case of fraud and breach of trust are established, these only entitle the complainant to an order of arrest, and not to an injunction.
I find no warrant for this limitation of the power of the court. It is true that in an action for money had and received by the defendant in a fiduciary capacity, or where the defendant has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is founded, he may be arrested ; but nothing in the chapter of the Code relating to that subject (chap. 1, title 7, part 2), makes that the sole and only mode of procedure. If the case was one which furnished grounds for equitable interposition by injunction, the right to resort, at the plaintiff’s option, to the ordinary legal process by [295]*295arrest would not affect the power to enjoin. It may be that the court would not arrest the person and enjoin the act which was threatened, but that I apprehend would be a question of discretion which the court would take care to exercise so as not to work oppression or unnecessary hardship.
Once more, it is insisted that by the Code (§ 219) the injunction cannot be sustained unless the court are satisfied that the defendant is about to remove his property, or do some other act, pending the litigation, calculated to prejudice the plaintiff.
This clause of the Code is held to relate to an injunction applied for after an action has been commenced, and where the grounds of the injunction appear during the litigation. (See Perkins v. Warren, 6 How. Pr. R. 341; Malcolm v. Miller, 6 Pr. R. 456), and does not apply to a ground for injunction "which existed at or before the action was brought.
The language of the section referred to appears to me to be ample to sustain the power exercised in this case, e. g. when it shall appear by the complaint that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of some act, the commission or continuance of which, during the litigation, would produce injury to the plaintiff, etc., an injunction may be granted, etc.
This very general language would seem to provide for every case in which a temporary injunction was proper before the Code. Indeed, it was not, in my opinion, the design of the legislature to abridge the power of the courts, as courts of equity, to grant that provisional relief theretofore had by injunction. On the contrary, the last clause of section 219 is a plain enlargement of the power.
The law recognizes the existence, and use of this remedy, and changes its form to an order of the court or judge, instead of requiring the unnecessary additional form of a writ. And it has been repeatedly held that the Code has not impaired the general power of the court to enjoin where an injunction was before proper. (Howard v. Ellis, 4 Sand. 369; Malcolm v. Miller, 6 How. Pr. R. 456.) Hence, in an action between part[296]*296ners, brought for the purpose of a dissolution and a settlement of the co-partnership affairs, the payment of the debts, etc., an injunction to restrain either, and even both, of the co-partners, may be as proper now as it ever was. (See McCracken v. Ware, 1 C. R. 215.) Nor is it denied that an injunction would be granted now as before to restrain a trustee or agent when he attempts to transfer the funds or property in his hands to the prejudice of the party beneficially interested, or to restrain a party who is abusing his trust. Nor generally to restrain fraud, and protect and xiphoid a trust against the wrong of a trustee.
That the present defendant, in so far as he has received the proceeds of two thirds of the ship in question, was a trustee for the plaintiff is not denied. And entertaining the views above suggested, I perceive no lack of jurisdiction, nor any reason in the provisions of the Code, for denying the injunction, if the facts are as claimed by the plaintiff.
In respect to the merits, I adopt'fully the language of the first judge at special term, that when the claim is for the proceeds of a sale made by the defendant, as agent for the plaintiff, in the hands of the agent, and identified as the very proceeds of the plaintiff’s property, but which the defendant refuses to delivei’, “ there can be no doubt of the propriety of granting the injunction.”- Indeed, I do not understand the defendant’s counsel as denying this proposition if the case is not altered by the Code.
In such case, the plaintiff has title to the very subject of the suit—and any use of the same, or transfer or removal thereof, and any appropriation to his own use, or otheiuvise than a delivery to the plaintiff, is, as matter of law, an injury to the plaintiff—a palpable violation of his legal and equitable rights; and the moment the relation of principal and agent is established, and the possession of the property is shown to be in trust for the plaintiff as a fiduciary matter, or as I also think where a trust results, as in this case, from the sale of a ship owned jointly by the plaintiff and the defendant, and the whole proceeds come to the hands of the defendant, as the agent of both, the court will enjoin, upon the distinct gx-ound of restraining a [297]*297breach of trust and commission of a fraud upon the party beneficially interested. And in such case it is not sufficient for the fraudulent agent to say, if I do wrong I am of sufficient responsibility to make reparation in damages. The plaintiff is entitled to the very subject of the action, and a court of equity will decree that specific subject to him on'final judgment if he establish his case, and for that reason they will, if need be, restrain any act which may place the property beyond their reach. In other words, they will secure to the plaintiff his own property, and not leave him in such case to pursue the defendant for damages, however responsible he may be.
For these same reasons I fully concur in the opinion given at special term, that the injunction in such case should only be applied to the actual proceeds of the sale of the plaintiff’s property, and not to other moneys of the defendant. As to such other moneys, the plaintiff has no specific claim thereto. If it turn out, upon an accounting, that the defendant is a debtor to the plaintiff for funds misapplied, and again invested in other property so that it can still be identified as in equity belonging to the plaintiff, it may doubtless be reached, but otherwise the plaintiff in that respect would be like any other creditor.
I do not, however, perceive the justness of the conclusion that, when the plaintiff seeks to recover more than the amount admitted to be the proceeds of sale, the injunction should not be granted so as to cover any greater amount of proceeds than is so admitted.
On the other hand, it appears to me that the plaintiff’s right to the injunction does not at .all depend upon the defendant’s admission; if it did, there could be no injunction, unless the defendant admitted the proceeds to be in his hands.
The inquiry is, as it appears to me, Has the plaintiff made such a case upon all the proofs laid before the court, as shows his own title to the proceeds in question, with such reasonable certainty as renders the exercise of the discretion of the court by granting the injunction, pendente lite, proper to restrain a fraudulent misappropriation thereof by the admitted trustee?
It is not denied that the defendant was employed in a fidu[298]*298ciary capacity, with the most unqualified power to sell the ship in question.
It is not denied that he’ did sell that ship in China, and receive the proceeds of sale.
It is not denied that the property which was enjoined in the hands of the defendant’s banker, and which was, by consent of the parties, brought into court, was the identical proceeds of that sale in China.
Upon this state of things, the application of the principles adopted below, as well as repeated by me, seem to render the continuance of the injunction, restraining the transfer or disposition of those proceeds, a matter of course, unless the defendant has, on his part, shown good cause to the contrary.
This he attempts to do, by averring that, before he took the ship to China, to wit, while in San Francisco, California, he sold the ship to one J. P. Haven, at auction, and that his agency and trusteeship for the plaintiff then ceased; and, in his subsequent taking the ship to China, he acted for himself and Haven, and not for the defendant. So that, in the China sale, he was not the plaintiff’s agent or trustee in any sense whatever.
If this be so, or if the defendant has so far established this state of facts by his proofs laid before the court, on the motion below, as to overcome the proofs offered by the plaintiff, and the just inferences therefrom, I quite agree that the injunction ought not to embrace a larger sum than would .be due to the plaintiff from the proceeds of the alleged sale at San Francisco, and that the order at special term should be affirmed.
But, after a careful consideration of the complaint, answer, affidavits, and correspondence, laid before the court, I am constrained to say that the defendant has failed to rebut the evidence which bears most strongly in the plaintiff’s favor upon this question. His case rests, and, under the circumstances, at so great a distance from the scene of these sales, it may be necessarily rests, upon his own statement; and, if that stood alone opposed to the plaintiff’s complaint and affidavit, we should no doubt regard'it as a full denial of the plaintiff’s [299]*299claim to any interest in the China sale, and a sufficient reason for the order made below. But the correspondence and affidavits of third persons throw very great doubt upon the truth of the defendant’s answer, not necessarily impeaching its sincerity in all respects, but indicating that his answer is made upon some assumptions respecting his own powers and duty, and the legal and equitable rights of the plaintiff, which are erroneous.
That the defendant undertook to act for the best interest of the plaintiff is apparent from all the papers. That he professed so to act, and that he declared that whatever he did for himself he did for the plaintiff, is found in his letter, written a very few days before the alleged sale in San Francisco, and I may add to this, that whatever he did for himself touching the sale of the ship, and any of the terms and conditions of sale, the plaintiff had a right to regard as done for him also, whether the defendant so declared or not.
By the same letter, and in view of the proposed attempt to sell the ship at auction, in San Francisco, the defendant says, “ If she does not bring over $25,000, I shall bid her inand declares his purpose, in that case, to take her to China, adverting freely and fully, in the same letter, to J. P. Haven, as his friend and adviser, who was. then employed in rendering him aid in his difficulties regarding the ship.
The ship did not bring $25,000 at the auction. The ostensible buyer was this same friend and adviser, J. P. Haven. The defendant immediately fits her out for China, and sells her there, without any evidence or even statement that Haven ever paid a dollar, and without sending home to the plaintiff any funds, until after his return from China to California with the proceeds of her China sale. In connection with these circumstances, the affidavit of Richard P. Haven comes with great force in support of the claim that the ship was bid in by J". P. Haven for the defendant, in pursuance of the intention which the defendant, before the sale, declared. ' He testifies that he was in the employment of his brother, J. P. Haven, and had the supervision of his books and of his business at the time of the said alleged sale; that his brother acted as the [300]*300defendant’s adviser, and that the ship was put up for sale in pursuance of his advice, for the purpose of fixing the amount of the owner’s claim against other parties who had broken their contract of purchase, and that J. P. Haven was not the purchaser of the ship for his own account, but bid her in for account of the defendant.
The statement contained in the letter received by the plaintiff, from San Francisco, is not strictly evidence, but, in circumstances of doubt, may very properly be referred to as strengthening the claim of the plaintiff to be protected by. injunction against an apprehended fraud. _ Such letters, containing statements of what took place thousands of miles distant, may properly be used temporarily, before time can be had to obtain formal proof, to sustain a remedy which is purely provisional in its character, and which does not conclude either party; and, from this, it seems that J. P. Haven makes no claim whatever to any interest in the ship, but declares that he acted for the defendant; and even without placing much stress upon this letter itself, the half admission testified to by Mr. Wakeman, involved in the defendant’s claim that he had a right to become the purchaser, is of nearly equivalent force.
There are other circumstances of. suspicion in the discrepancy between the defendant’s letters and his account; and, upon a review of the whole case, his statement of the transaction seems to me so far overcome, that I am constrained to regard the plaintiff as having, with reasonable certainty, established that the defendant did in fact buy in the ship, at San Francisco, for account of all the owners; and, therefore, that the proceeds of the China sale now admitted to be here and under the injunction, belong to him.
Upon the taking of proofs, the defendant may show the contrary ; or, upon the final hearing, the plaintiff may possibly fail in sustaining his present claim; but, in my judgment, he shows himself entitled to the temporary injunction to hold the property until the case can be heard and determined upon the proofs.
It is true that the defendant’s denial is broad and comprehen[301]*301sive enough to meet the whole claim to the China sale,' and is in some degree corroborated; not, however, so as in my mind to countervail the case made by the plaintiff.
I think, therefore, that the order at special term should be reversed, but without costs on appeal.
Daly, J. I concur in the above.
Ingraham, First J.
I still retain the opinion that the injunction should not apply to the proceeds of the sale of the vessel in China. All the allegations upon which the plaintiff seeks to charge the defendant with fraud as to the sale in San Francisco are denied by the defendant, and where such is the case, I understand the rule to be to deny the motion for an injunction.
If the sale at San Francisco was not fraudulent, then the proceeds of that sale belong to the plaintiff, and not the one in China; and, before the plaintiff is entitled to hold the defendant for that, he must establish his right to it by a judgment.
When, on the decision of this motion, it was said that the injunction should not apply to inore than the amount admitted to be the proceeds of the sale, reference was made to the admissions of the plaintiff in his affidavit as well as those of the defendant. Both parties admit the sale in San Francisco. Whether that sale was a valid one or not is to be settled on the trial of the case. But, as all the alleged fraud is fully denied by the defendant, the injunction should not be extended to any other moneys than the proceeds of such sale.
The majority of the court concurring, the order made at special term, in part dissolving the injunction, was reversed, without costs on the appeal.