Rhoades v. Woolsey

New York Supreme Court

Rhoades v. Woolsey

9 How. Pr. 510

DecidedJuly 15, 1854

StatusPublished

This text of 9 How. Pr. 510 (Rhoades v. Woolsey) 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

Rhoades v. Woolsey, 9 How. Pr. 510 (N.Y. Super. Ct. 1854).

Pincite

Opinion

Wright, Justice.

I do not think that the defendant offers any valid reason for dissolving the injunction, or even for modifying it so as to permit Mm to use and work the boat on his own behalf. If it be true, as averred in his affidavits, that Joseph H. Gilíes owns two-thirds of the boat, the defendant has no interest in her, unless it be in the third part claimed to be owned by the plaintiff; and that part it is averred he sold to the plaintiff, and has received payment therefor. If the fact be that the plaintiff is the owner of-one-third, and Gilíes of the remaining two-thirds of the boat, the defendant, although in possession, has divested himself of all title in the property, and cannot reasonably ask that the injunction should be modified so as to allow him to use and work the boat on his own account, or as an owner in common.

Gilíes testifies that he is the owner of two-thirds of the canal-boat in controversy, and by reason of the injunction he is suffering great loss and damage every day, being prevented from using said boat in the ordinary business in which she has. heretofore been used. The injunction does not inhibit Gilíes from using the boat, nor could any injunction have been obtained against him on the matters set forth in the complaint» If, in fact, he has title to two-thirds of the property, he has the right to use the boat, notwithstanding the injunction. He is part owner with either the plaintiff or defendant, and may work and use the boat, accounting hereafter, if required, for one-third of her net earnings to the plaintiff or defendant, as the ownership of that third shall be found in one or the other of them.

[512]*512The injunction sought to be dissolved only restrains the defendant, his agents or servants, from using, selling, encumbering, or otherwise disposing of the boat. I am of the opinion that a case has not been made by the defendant, calling for a dissolution of the injunction order of the county judge, or for a modification of it so as to allow the defendant to use the boat, pending the litigation.

The motion to dissolve the injunction is denied, with $10 costs of opposing motion, to be paid by defendant to plaintiff.

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Wright, Justice.

I do not think that the defendant offers any valid reason for dissolving the injunction, or even for modifying it so as to permit Mm to use and work the boat on his own behalf. If it be true, as averred in his affidavits, that Joseph H. Gilíes owns two-thirds of the boat, the defendant has no interest in her, unless it be in the third part claimed to be owned by the plaintiff; and that part it is averred he sold to the plaintiff, and has received payment therefor. If the fact be that the plaintiff is the owner of-one-third, and Gilíes of the remaining two-thirds of the boat, the defendant, although in possession, has divested himself of all title in the property, and cannot reasonably ask that the injunction should be modified so as to allow him to use and work the boat on his own account, or as an owner in common.

Gilíes testifies that he is the owner of two-thirds of the canal-boat in controversy, and by reason of the injunction he is suffering great loss and damage every day, being prevented from using said boat in the ordinary business in which she has. heretofore been used. The injunction does not inhibit Gilíes from using the boat, nor could any injunction have been obtained against him on the matters set forth in the complaint» If, in fact, he has title to two-thirds of the property, he has the right to use the boat, notwithstanding the injunction. He is part owner with either the plaintiff or defendant, and may work and use the boat, accounting hereafter, if required, for one-third of her net earnings to the plaintiff or defendant, as the ownership of that third shall be found in one or the other of them.

[512]*512The injunction sought to be dissolved only restrains the defendant, his agents or servants, from using, selling, encumbering, or otherwise disposing of the boat. I am of the opinion that a case has not been made by the defendant, calling for a dissolution of the injunction order of the county judge, or for a modification of it so as to allow the defendant to use the boat, pending the litigation.

The motion to dissolve the injunction is denied, with $10 costs of opposing motion, to be paid by defendant to plaintiff.

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Bluebook (online)

9 How. Pr. 510, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rhoades-v-woolsey-nysupct-1854.