Maine Products Company, Respondent, v. Alexander Alexander, Appellant

Maine Products Company, Respondent, v. Alexander Alexander, Appellant. (No. 1.) First Department, October 19, 1906. Injunction — complaint not warranting injunction restraining defendant from acting as plaintiff’s manager — delivery of books and papers not compelled by injunction. Under a complaint alleging that' the defendant was employed by the plaintiff, a corporation, as manager for a,term of years, that the contract was obtained by fraud, that the plaintiff rescinded it and discharged the defendant, the court, is"not authorized to grant a temporary injunction under section 603 of the Code of Civil Procedure, restraining the defendant from acting as general manager, when injunctive relief was not requested. Nor is such temporary injunction authorized under section 604 of the Code of Civil Procedure, which allows the same when the defendant threatens acts which will render the judgment ineffectual. It seems, moreover, that the act of the plaintiff in discharging the defendant, whether right or wrong, deprives him of any power to bind the corporation and renders impossible the commission of the acts' which may be.restrained under section 604 of the Code of Civil Procedure. There is no authority for the issuance of a mandatory injunction under such complaint directing the defendant to surrender all the plaintiff’s books and papers in his possession as general manager. If such books are improperly withheld, the plaintiff must obtain possession by a proper action or sue for damages for their retention. Appeal by the defendant, Alexander Alexander, from an order of the Supreme Court,' made at the Wew York Special Term and entered in the office of the clerk of the county of Wew York on the' 25th day of May, 1906, as resettled by an order entered in said clerk’s office on the 6th. day of June, 1906, directing the defendant to surrender all books, papers, etc., in his possession as general manager of the plaintiff, and enjoining the defendant ¡pendente lite from acting as such general manager. Edward A. Alexander, for the appellant. Lewis H. Freedman, for the respondent. [MAJORITY — Ingraham, J.:] Ingraham, J.: The defendant was appointed general manager for the plaintiff by a contract whereby the plaintiff employed the defendant as general manager for.a period of five years from the 15th day of J uly, 1905, and issued to the defendant 1,000 shares of the common stock of the company at the par value of $100 each as compensation for his services as such general manager for the five years. The plaintiff further alleges that this contract was obtained by fraud and that subsequently upon ascertaining the fraud the plaintiff passed- a resolution rescinding the contract and discharging the defendant as general manager. The fraud is strenuously denied by the defendant, and the plaintiff made a motion for an injunction restraining and enjoining him from acting as general manager for the plaintiff, and directing him to surrender to the plaintiff all the books .and papers and other property of the plaintiff in his possession. There is no demand in the complaint for any injunction to restrain the defendant from acting as general manage]', or any relief in relation thereto. The court is authorized to grant an injunction in two cases": First, by section 603 of the Code of Civil Procedure, “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, an injunction order may be granted to restrain it.” As no relief is asked for in relation to the defendant acting as general manage]’, and no facts are shown that would entitle the plaintiff to a final judgment for such relief, the court was not justified in granting an injunction restraining the defendant from acting as general manager under this section. • The other case in which an injunction is granted is provided for by section 604 of the Code, which provides that “ where it appears by'affidavit that the defendant, during the pendency of the action, is doing or procuring, or suffering to be done, or threatens, or is about to do, or to procure, or suffer to be done, an act in violation of the plaintiff’s rights respecting the subject of the action, and tending to render the judgment ineffectual, an injunction order may be granted to restrain him therefrom,” or “where it appears by affidavit that the defendant, during the pendency of the action, threatens, or is about to remove or to dispose of his property, with intent to defraud the plaintiff, an injunction order may be granted to restrain the removal or disposition.” It is quite clear that this section does not apply, and the injunction is not authorized under it. Bo act of the defendant claiming to be general manager can render any judgment that the plaintiff can obtain in this action ineffectual. If the resolution dismissing the defendant was authorized, no act of the defendant as general manager will bind the company. Indeed, it is probable that the act of the company in dismissing the defendant as general manager would, whether justified or not, terminate his power to bind the company, leaving him to recover his damages he sustained in consequence of a violation of his contract by the plaintiff. There is nothing to show that the defendant threatens to act as general manager, and such intention is expressly disclaimed by the defendant; the court was not, therefore, justified in restraining the defendant from acting as general manager pending the action. The order appealed from then directs the defendant to surrender to the 'plaintiff within forty-eight hours “ all the books, papers and other property of the plaintiff in his possession as general manager of the plaintiff.” No section of the Code and no provision of law is cited which justified such an order. No such relief is asked for in the complaint. If the defendant has property belonging to the plaintiff the-plaintiff can obtain possession of it by a proper action, or recover damages for its retention by the defendant, if the defendant unlawfully retains it; but I know of no practice that justifies ' the court in .an action of this kind by a sum mazy order to require 'a party to an action to deliver to another all property that the defendant possesses which the plaintiff claims belongs to him. 1 think the order should be reversed, with ten dollars costs and disbursements, and the motion for an injunction denied, with ten dollars costs. O’Brien, P. J.,. Houghton and Clarke, J J., concurred. Order reversed, with ten dollars costs and disbursements, and motion, denied, with ten dollars costs.