Opinion
July, 1910.
Max E. Lehman, for motion.
John L. Bernstein, opposed.
Plaintiff bought the defendant's drug store, giving him in part payment of the consideration several promissory notes. Plaintiff claims that the defendant was guilty of deceit in representing the amount of business done in the store, and has brought an action for damages for such alleged deceit. Plaintiff now moves for an injunction pendente lite to restrain the defendant from negotiating the notes.
The complaint does not ask for a delivery up and cancellation of the notes, but confines itself in the prayer for relief to money damages.
It is clear that section 603 of the Code of Civil Procedure, which provides for an injunction order: "Where it appears from the complaint, that the plaintiff demands and is entitled to a judgment against the defendant, restraining the commission or continuance of an act, the commission or continuance of which during the pendency of the action, would produce injury to the plaintiff," does not apply. Nor do the provisions of subdivision 1 of section 604 of the Code cover the case. That section is to be applied only where the defendant procures or suffers or threatens to procure or suffer the doing of an act during the pendency of the action "in violation of the plaintiff's rights respecting the subject of the action and tending to render the judgment ineffectual."
The subject of the action here is the claim of the right to recover damages for deceit; and, although the defendant may negotiate the notes during the pendency of the action, the plaintiff in the form in which this action is presented cannot enjoin such negotiation as violating the plaintiff's rights respecting the subject of the action any more than she could have enjoined the use of the money by the defendant, had the consideration paid upon her purchase of the drug store been in cash in lieu of the notes. The "violation of the plaintiff's rights respecting the subject of the action and tending to render the judgment ineffectual," within the meaning of subdivision 1 of section 604 of the Code, is not to be predicated of the fact that the plaintiff gave the defendant negotiable paper as a part consideration of her purchase where the only "subject of the action" is a claim for damages for deceit in the sale of the property. See Leonard v. Schmidt, 109 A.D. 549. The motion must be denied.
Motion denied.