Peet v. Hatcher. Motion for an order restraining the defendant from removing or disposing of or interfering with his property during the pendency of this action, and especially restraining him from removing or disposing of or interfering with any money due to him by any person within the jurisdiction of the court and from removing or disposing of or interfering with certain certificates of stock of the Georgia Construction Company. This action was brought upon an account stated between the plaintiff and the defendant to recover the sum of $17,461.10, balance of moneys advanced by the plaintiffs to and for the account and use of the defendants at his request between May 30, 1885, and December 21, 1885, in buying and in selling cotton as brokers for the defendant and for expenses incurred in connection with such transactions. The summons and complaint were personally served on the defendant on January 4, 1888. Motion was made upon the summons and complaint setting forth these facts and also an affidavit showing that the defendant was a non-resident of the city of New York, and resides in Columbus, in the State of Georgia, and also averring that the defendant was the owner of a share of stock of the Georgia Construction Company, of the par value of $5,000, and of the market value of about $7,500, and that he had purchased upon credit, cotton to the extent of 10,000 bales upon which there was a profit of over $50,000; that he intended to depart from the State and return to Columbus, Georgia, and to take such profits with him and such shares of stock with him with the intent to defraud the plaintiffs, and contained statements of conversations had with the defendant substantiating such averments. The affidavit of the defendant, in opposition to the motion, denied the conversation set forth in the moving papers to support the contention that he intended to depart from the State and to take his property with him Peet v. Hatcher. for the purpose of defrauding these plaintiffs, and alleged that whatever statements he made were made in relation to business of his wife; it also appears from the answering affidavits that on January 4, 1888, the plaintiffs cause an attachment to be levied on all the property of the defendant in the hands of and all debts due to him by James H. Parker, a cotton broker in the City of New York, and has also served a copy of the attachment upon the wife of the defendant. Edward S. Clinch, for plaintiff and motion. The motion for an injunction is made under Code of Civil Procedure, section 604, subdivision 2 . . . The plaintiff having a specific lien upon the property attached, have the right to any remedial order that will protect them from against any destruction. In Frost v. Mott, 34 N. Y. 253, the court held "that a party attaching property in the possession of his debtor, acquires a specific lien on his interest therein and is entitled, like a judgment creditor, to impeach the title of a fraudulent mortgagee." See also Rinchey v. Stryker, 28 N. Y. 45; Kelly v. Lane, 42 Barb, 594; Thurber v. Blanck, 50 N. Y. 80. The levy of a judgment creates a specific lien sufficient to authorize an affirmative action for the protection of the lien. (Greenleaf v. Mumford, 30 How. Pr. 30), and if he can maintain an independent action because of this lien he is certainly entitled in an action in which the writ issues to any order the court has power to make to protect that lien during the pendency of the action. T. Henry Dewey, for defendant, opposed. PATTERSON, J.-The application for the injunction in this case is based upon sub. 2 of sec. 604 of the Code of Civil Procedure. Under that subdivision an injunction in a proper case would go against specific property, or any Peet v. Hatcher. property in the hands of the defendant or his agents, but it must be made to appear that the defendant has property upon which an injunction would act. Here the affidavits interposed on behalf of the defendant show that the property mentioned in the moving papers belongs to Mrs. Hatcher, and not to the defendant, and she shows further that she received it from other sources and not from her husband. General reflections upon the improbability of a woman engaging in cotton speculations cannot prevail against positive oaths accompanied by circumstantial details of ownership. The authority for this injunction is contained in the section of the Code referred to. It cannot be upheld as an aid to an attachment. A proceeding is established by law to make an attachment effectual. It cannot be done in this application. Motion to continue the injunction denied, with $10 costs. INDEX. Page ABATEMENT OF ACTION—An action abates when it is de- 377 1 When evidence excluded for failure to serve copy of account 43 Order excluding evidence for such failure, when necessary... 43 ADMINISTRATOR-See CONTEMPT. ALIMONY-See CONTEMPT. ALLOWANCE-See COSTS. AMENDMENT-Provisions of Code of Civil Procedure relating to amendments in courts of record apply to surrogate's courts... 171 ...... Test of the propriety of an amendment of proceedings, etc., 171 171 Effect of order extending time to plead, after such time has 152 See PLEADING. APPEAL When court improperly refuses to discharge impris- 147 When Sunday excluded..... 147 Findings of jury on disputed facts not disturbed....... 361 When judgment reversed on, for refusal to postpone trial.... 227 202 The granting of a stay and the security to be given as a con- Where a client has settled an action and his opponent there- From Justice's Court-When properly taken from judgment May be taken from determination of justice of district court, Appeal to county court from justice's court should not be dis- Page 220 323 246 134 92 .... 92 A demand in a notice of appeal from a justice's court for a When county court vested with jurisdiction of appeal from When new trial on appeal from justice's court to a county From justices court must be taken within twenty days after .... 92 147 See COSTS; JUSTICE'S COURT; UNDERTAKING. ... 301 Affidavit upon which granted must be positive and make out Where material allegations upon which order of arrest is 445 445 445 An order of arrest should be vacated where affidavits upon....... ...... A defendant arrested in an action of replevin may be admit- 445 |