Van Sinderen v. Lawrence

20 N.Y. St. Rep. 76

Opinion

Daniels, J.

The injunction was issued to enjoin and restrain the defendant, his agents, etc., during the pendency of this action, from taking any further steps in the surrogate’s court, upon or relating to, or in attempted violation of the general release executed and delivered by .the defendant to the plaintiff. The right of the plaintiff to this injunction depended upon the same facts as his right to maintain and prosecute the action itself, to obtain an adjudication sustaining, or controlling, the effect of the release in controversy. That such an action may be maintained, has the approval and authority of Wright v. Fleming (76 N. Y., 517), as well as the other authorities which have been mentioned in the disposition of the appeal in this action from the interlocutory judgment. It is unnecessary to go over the case again for the disposition of this appeal. As the surrogate and the referee appointed' by him was without 'the power to hear and dispose of the controversy which has arisen concerning the release, it followed that the plaintiff was entitled to have it heard and determined in this action. And as all the necessary facts had been alleged and set forth Upon which that determination may be made, and disclosing its necessity, the order continuing the injunction was right, and it should be affirmed with ten dollars costs, and also the disbursements.

Van Brunt; P. J., and Brady, J., concur.