CHATTERTON v. KREITLER

CHATTERTON v. KREITLER. N. Y. Supreme Court, First Department; Chambers, November, 1877. Affidavit.—Complaint.—Injunction.—Sections 603, 607 of Code of Civ. Pbo. Under section 603 of the Code of Civ. Pro., as formerly, an application for an injunction should be made on affidavit, and not on a verified complaint alone. Motion by plaintiff for an injunction. George W. Chatterton, and David Dodd, copartners’ brought this action against Ulric Kreitler, and August Bergstein, to have a certain assignment, or deed of trust, from Kreitler to Bergstein declared void, and a receiver appointed, an injunction granted, &c. The complaint alleged the obtaining of a judgment by the plaintiffs against the defendant Kreitler; that execution had been issued and returned unsatisfied; that during the pendency of that action Kreitler had made an assignment of his property by deed of trust to Bergstein, a copy of which was annexed to the complaint, and formed a part thereof, for the purpose of defrauding the plaintiffs ; that there was danger of the property being disposed of in such a manner that the plaintiffs would lose their judgment, &c. The demand of relief was, that the deed of trust be adjudged fraudulent and void as against the plaintiffs; that a receiver be appointed ; that defendants account; and that they be enjoined from disposing of the trust property; and that the receiver pay the judgment of the plaintiffs against Kreitler. This complaint was verified by the plaintiff Dodd. On the summons and complaint alone, the plaintiffs moved for a preliminary injunction to restrain the defendants from disposing of any of the trust property or its proceeds.' . The motion was opposed by affidavits, showing the origin of the deed of trust, and alleging that it was not given to defraud creditors, but in good faith to carry out a compromise with a majority of them, &c. A. J. Vanderpoel, for the motion. Abel Croolc, opposed,—Urged, that the plaintiffs should have moved on affidavits ; that section 603 of Code of Civ. Pro. is in substance a part of section 219 of Code of Pro., and under that section an affidavit had repeatedly been held necessary (Fowler v. Burns, 7 Bosw. 637; Hascall v. Madison University, 8 Barb. 174, 176). That section 607 of Code of Civ. Pro. required an affidavit in all cases. [MAJORITY — Lawrence, J.] Lawrence, J. I am not prepared to hold that section 603 of the Code of Civil Procedure dispenses with the necessity of an affidavit upon an application for an injunction. If it does not, the verification of the complaint is not sufficient. Section 603 must be read in connection with section 607 (See also Mr. Throop’s note to § 603). For this reason the motion for an injunction is denied, but, as the point is new, without costs.