Sherwood v. Fred O. H. Fincke Co.

196 A.D. 97, 187 N.Y.S. 755, 1921 N.Y. App. Div. LEXIS 5488

Opinion

Per Curiam:

The plaintiff has not rescinded and does not seek to rescind the instrument he claims was procured by fraud. Neither does he restore nor offer to restore the property obtained by him. His action is clearly an action for damages only. (Hedges v. Pioneer Iron Works, 166 App. Div. 208, 209.) The nature of the action, therefore, did not authorize an injunction under section 603 of the Code of Civil Procedure. The only thing which plaintiff’s moving papers allege the defendants are threatening to do tending to make plaintiff’s judgment ineffectual is to foreclose the mortgage upon plaintiff’s premises. As this action is to recover damages the plaintiff should show a threat to remove or dispose of property under subdivision 2 of section 604 of the Code of Civil Procedure. The threatened action of the defendants or an assignment of the mortgage would leave the plaintiff’s rights unimpaired, as the plaintiff in any action to foreclose the mortgage may set up this cause of action as a counterclaim and recoup his damages. This may be done notwithstanding any assignment of the mortgage, as the assignee takes the mortgage subject to all equities existing between the original parties. (See Rapps v. Gottlieb, 142 N. Y. 164; Briggs v. Langford, 107 id. 680, and Hill v. Hoole, 116 id. 299, cited by plaintiff; also Code Civ. Proc. § 502; Pers. Prop. Law, § 41, subd. 3; American Guild v. Damon, 186 N. Y. 360; Crane v. Turner, 67 id. 437.) The plaintiff, therefore, has not shown himself entitled to an injunction under the only provisions of the Code of Civil Procedure authorizing it, nor that he is without a remedy at law.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Mills, Rich, Blackmar, Kelly and Jaycox, JJ., concur.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.