Jerome Co. v. Loeb & Co. , 59 How. Pr. 508 ( 1880 )

Donohue, J. —

This action is to recover damages for false representations made by the defendants, except Haas, by which plaintiffs parted with a large amount of goods; and while judgment is asked against the defendants, other than Haas, for the amount so lost, the suit is against Haas to restrain him from parting with or disposing of goods.assigned to him pending the action. The plaintiff claims that section 604, subdivision 2, of the Code, provides that remedy. There is no doubt, in its unlimited construction, that subdivision will bear that interpretation; but taking the law as it stood, which in the Code was simply codified, the sense of the whole section, including the subdivision, is clear. There were two classes of cases provided for; first, one for the disposition of the goods, the equitable title to which was in contest, and, second, the general power of the court to restrain a judgment debtor from putting it out of the power of the court to reach his property were he not enjoined. A construction that would give the present plaintiff, before judgment, the injunction sought to be continued could be invoked in a replevin suit, and thus a plaintiff, without giving more security than $250 on an injunction, would tie up all a defendant’s property which plaintiff might claim, and make the defendants its forced custodian pending a suit. In a libel suit, or a suit for slander or assault and «battery, or any suit sounding in damages, the same result would follow. It may be said that while this action sounds in damages it is really upon contract. This does not help the matter. The plaintiff must sustain the fraud or fail; and he asks to restrain the disposal of all defendant’s property pending that issue. It would be useless to reason out the result of such a course. . Any person can see what consequences would follow. I do not wish to be understood as saying that if the action had been on contract simply the same result would not be reached.

Motion granted.