Napier v. Westerhoff

U.S. Circuit Court for the District of Southern New York

Napier v. Westerhoff

138 F. 420, 1905 U.S. App. LEXIS 4612

CourtU.S. Circuit Court for the District of Southern New York

DecidedMarch 8, 1905

StatusPublished

This text of 138 F. 420 (Napier v. Westerhoff) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Southern New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Napier v. Westerhoff, 138 F. 420, 1905 U.S. App. LEXIS 4612 (circtsdny 1905).

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Opinion

TOWNSEND, Circuit Judge.

The allegations of complainant’s-moving and replying affidavits present a condition of affairs which, if proved, would call for the interposition of a court of equity. Some of these allegations are met by direct denials in the' answering affidavits, but it is not satisfactorily shown by these denials alone that this court ought not to grant some relief. The complaint, however, comprises such a variety of inconsistent charges and prayers for relief that it is difficult to determine- the measure of [421]*421complainant’s rights, or the extent of the relief which should be .afforded. Furthermore, it is clear that the granting of an injunction and appointment of a receiver would disastrously affect the business of the defendants, while, in the absence of allegation of their insolvency, it does not appear that the complainant will be irreparably damaged by the continuation of said business. For these reasons, it is thought that the questions involved should not be determined upon ex parte affidavits.

Motion denied.

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TOWNSEND, Circuit Judge.

The allegations of complainant’s-moving and replying affidavits present a condition of affairs which, if proved, would call for the interposition of a court of equity. Some of these allegations are met by direct denials in the' answering affidavits, but it is not satisfactorily shown by these denials alone that this court ought not to grant some relief. The complaint, however, comprises such a variety of inconsistent charges and prayers for relief that it is difficult to determine- the measure of [421]*421complainant’s rights, or the extent of the relief which should be .afforded. Furthermore, it is clear that the granting of an injunction and appointment of a receiver would disastrously affect the business of the defendants, while, in the absence of allegation of their insolvency, it does not appear that the complainant will be irreparably damaged by the continuation of said business. For these reasons, it is thought that the questions involved should not be determined upon ex parte affidavits.

Motion denied.

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Bluebook (online)

138 F. 420, 1905 U.S. App. LEXIS 4612, Counsel Stack Legal Research, https://law.counselstack.com/opinion/napier-v-westerhoff-circtsdny-1905.