Nicoll v. Pinner

10 How. Pr. 376

• Court: New York Supreme Court
• Decided: January 15, 1854
• Status: Published

Opinion

Roosevelt, Justice.

True, the person making the affidavit swears positively that the plaintiffs “ are the owners;” but then, it is said, he does not show that they are; on the contrary, he admits facts, it is said, which go to show that they are not. That they were once the owners is undisputed—that the) made a sale is undisputed; but if that sale, as is alleged, was fraudulent, they remain the owners still. Can I say that, on the face of the affidavit, there was no fraud 1 That is the precise issue to be tried. Until it is tried, what hardship can result in leaving the undertaking of the defendants to stand 1 They have the property, and can dispose of it as they see fit. Should the trial result, as they insist it will, in a verdict in their favor, their undertaking will then, by its very terms, be discharged, and they will have that of the plaintiffs to look to for damages. Should it result otherwise, however, as it may, the plaintiffs, in that event, might be seriously prejudiced should they be without any undertaking to secure them the fruits of the verdict.

Under the circumstances, justice, it seems to me, is most likely to be done by leaving the parties in statu quo.

Motion denied, without costs.