Park v. Musgrave

New York Supreme Court

Park v. Musgrave

2 Thomp. & Cook 571

DecidedJanuary 15, 1874

StatusPublished

This text of 2 Thomp. & Cook 571 (Park v. Musgrave) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Park v. Musgrave, 2 Thomp. & Cook 571 (N.Y. Super. Ct. 1874).

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Opinion

Barrett, J.

The plaintiff does not make out a case for equitable relief. The substance of his complaint, stripped of all mere matters of evidence, is that the defendants, under claim of, but without real right, are about to sell certain shares of stock which belong to him, and which he deposited with them as a “ margin” upon a certain speculative transaction. He claims that he is entitled to these shares, freed from the pledge, in consequence of the alleged misconduct of the defendants with respect to the principal transaction.

[573]*573If his statements are trae, he has a perfect remedy at law. Let him demand his collaterals and, if they are refused or sold, bring his appropriate action for damages.

There is no averment of the defendants’ insolvency, nor is even a doubt cast upon their responsibility. It is not charged that there is any thing peculiar in the character of the shares, that they cannot be readily replaced, nor that there is any difficulty in showing their market value.

The mere general averment of irreparable injury, without showing in what respect, as a matter of fact, is of itself insufficient to justify the granting of an injunction. The fact of a “low market ” is not enough, because, for aught that appears, the plaintiff can protect himself at the sale, and for the further reason that his damages will not be measured by the prices realized thereon.

Nor can the difficulty suggested be avoided or evaded by the demand of an accounting. Such a prayer is a non sequitur from the statement of the cause of action. On the plaintiff’s own showing he had but- a single transaction in stocks with the defendant, and the gravamen of his complaint is the tortious conversion of these stocks, resulting from their sale in violation of an alleged agreement to hold them until the happening of a certain contingency.

As the injunction, for these reasons, should not have been granted, it will be unnecessary to consider the other questions discussed upon the argument.

The order appealed from should be reversed, the motion to continue the injunction denied and the temporary injunction dissolved, with $10 costs.

Davis, P. J., and Daítdíls, J, concurred.

Ordered accordingly.

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Barrett, J.

The plaintiff does not make out a case for equitable relief. The substance of his complaint, stripped of all mere matters of evidence, is that the defendants, under claim of, but without real right, are about to sell certain shares of stock which belong to him, and which he deposited with them as a “ margin” upon a certain speculative transaction. He claims that he is entitled to these shares, freed from the pledge, in consequence of the alleged misconduct of the defendants with respect to the principal transaction.

[573]*573If his statements are trae, he has a perfect remedy at law. Let him demand his collaterals and, if they are refused or sold, bring his appropriate action for damages.

There is no averment of the defendants’ insolvency, nor is even a doubt cast upon their responsibility. It is not charged that there is any thing peculiar in the character of the shares, that they cannot be readily replaced, nor that there is any difficulty in showing their market value.

The mere general averment of irreparable injury, without showing in what respect, as a matter of fact, is of itself insufficient to justify the granting of an injunction. The fact of a “low market ” is not enough, because, for aught that appears, the plaintiff can protect himself at the sale, and for the further reason that his damages will not be measured by the prices realized thereon.

Nor can the difficulty suggested be avoided or evaded by the demand of an accounting. Such a prayer is a non sequitur from the statement of the cause of action. On the plaintiff’s own showing he had but- a single transaction in stocks with the defendant, and the gravamen of his complaint is the tortious conversion of these stocks, resulting from their sale in violation of an alleged agreement to hold them until the happening of a certain contingency.

As the injunction, for these reasons, should not have been granted, it will be unnecessary to consider the other questions discussed upon the argument.

The order appealed from should be reversed, the motion to continue the injunction denied and the temporary injunction dissolved, with $10 costs.

Davis, P. J., and Daítdíls, J, concurred.

Ordered accordingly.

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2 Thomp. & Cook 571, Counsel Stack Legal Research, https://law.counselstack.com/opinion/park-v-musgrave-nysupct-1874.