Rogers v. Marshall

6 Abb. Pr. 457, 38 How. Pr. 43

Opinion

By the Court.

* Clerke, J.

This is totally different from an action of ejectment.

It seeks relief on the ground of fraud, mistake, and want of jurisdiction, in the court in which the proceeding's to foreclose the alleged lien of Maginn were commenced.

It clearly presents, therefore, precise grounds for the equitable interposition of this court, and in such cases we never refuse preliminary injunctions, and the appointment of a receiver, if the condition of the subject of the controversy requires the aid of these provisional remedies.

From the plaintiff’s complaint, and affidavits upon which the injunction was obtained and the receiver appointed, it is evident that the defendants are irresponsible, that they are collecting the rents which they are unable to refund, and which probably will be lost if they are not restrained.

It appears also, that the premises, in consequence of their incapacity or neglect, are in a ruinous condition for the want of repairs, and that they will continue to deteriorate if they remain under the control and in the possession of the defendants.

The order should be affirmed with costs.

Barnard, J.

The only question in this case is our power.

The facts established in the papers by the plaintiff clearly entitle him to the relief, if it can be given.

In the case of People v. Mayor (10 Abb. Pr., 117), decided by the general term of this district, it was expressly so held.

Present, Clerke, P. J., and Cardozo and Barnard, JJ.