Richards v. Goldberg

New York Court of Common Pleas

Richards v. Goldberg

27 N.Y.S. 919, 7 Misc. 388, 57 N.Y. St. Rep. 565

DecidedMarch 5, 1894

StatusPublished

This text of 27 N.Y.S. 919 (Richards v. Goldberg) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Richards v. Goldberg, 27 N.Y.S. 919, 7 Misc. 388, 57 N.Y. St. Rep. 565 (N.Y. Super. Ct. 1894).

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Opinion

DALY, C. J.

The learned judge at special term properly disposed of this motion upon the merits by continuing the injunction, for the preponderance of proof, in the affidavits, is with the plaintiff that, when defendant took the lease and contract of sale in his own name, it was in contemplation of a joint interest therein belonging to the plaintiff. He expressly swears that he would not take the lease and contract until his father said he would get a party to take a half interest with him, and that, after the instruments were executed, his father disclosed the plaintiff as the party to whom he referred, and defendant was informed by his father, and believes and states the fact to be, that the plaintiff knew and desired that the lease and contract should be taken in his name. These admissions clearly establish the interest of plaintiff at the time the instruments were executed, and that defendant acted on her behalf, as well as his own, in obtaining them; and the terms of the contract, in writing, which he subsequently, proposed for her signature, reciting that she was, in effect, so interested from the beginning, is confirmation of the plaintiff’s contention. The [920]*920case of the plaintiff was therefore made out as strongly by defendant’s affidavit as her own, and there was no course left but to grant her motion.

The point is made that the court should have required, as a preliminary to the granting of the injunction, (which restrained, among other acts, the prosecution of an action for rent,) security in the form prescribed by section 611 of the Code, when it is desired to stay the trial of an action in which the complaint demands judgment' for a sum of money only, after issue has been joined therein, viz. an undertaking to pay all damages and costs which may be recovered in that action, and also all damages and costs in the injunction action. It nowhere appears in the record before us, however, that issue has been joined in the action for rent, and therefore the provisions of section 611 do not apply.

Objection is made that the injunction order does not contain a sufficient statement of the grounds of the injunction, as required by section 610 of the' Code. The order recites the several acts of the defendant complained of, followed by a statement in the language of the section, and that is undoubtedly sufficient. It plainly apprises the reader of the grounds of the injunction. Order appealed from affirmed, with costs. All concur.

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DALY, C. J.

The learned judge at special term properly disposed of this motion upon the merits by continuing the injunction, for the preponderance of proof, in the affidavits, is with the plaintiff that, when defendant took the lease and contract of sale in his own name, it was in contemplation of a joint interest therein belonging to the plaintiff. He expressly swears that he would not take the lease and contract until his father said he would get a party to take a half interest with him, and that, after the instruments were executed, his father disclosed the plaintiff as the party to whom he referred, and defendant was informed by his father, and believes and states the fact to be, that the plaintiff knew and desired that the lease and contract should be taken in his name. These admissions clearly establish the interest of plaintiff at the time the instruments were executed, and that defendant acted on her behalf, as well as his own, in obtaining them; and the terms of the contract, in writing, which he subsequently, proposed for her signature, reciting that she was, in effect, so interested from the beginning, is confirmation of the plaintiff’s contention. The [920]*920case of the plaintiff was therefore made out as strongly by defendant’s affidavit as her own, and there was no course left but to grant her motion.

The point is made that the court should have required, as a preliminary to the granting of the injunction, (which restrained, among other acts, the prosecution of an action for rent,) security in the form prescribed by section 611 of the Code, when it is desired to stay the trial of an action in which the complaint demands judgment' for a sum of money only, after issue has been joined therein, viz. an undertaking to pay all damages and costs which may be recovered in that action, and also all damages and costs in the injunction action. It nowhere appears in the record before us, however, that issue has been joined in the action for rent, and therefore the provisions of section 611 do not apply.

Objection is made that the injunction order does not contain a sufficient statement of the grounds of the injunction, as required by section 610 of the' Code. The order recites the several acts of the defendant complained of, followed by a statement in the language of the section, and that is undoubtedly sufficient. It plainly apprises the reader of the grounds of the injunction. Order appealed from affirmed, with costs. All concur.

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27 N.Y.S. 919, 7 Misc. 388, 57 N.Y. St. Rep. 565, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richards-v-goldberg-nyctcompl-1894.