¶1— After going over the plaintiff’s excellent brief, in connection with all the papers submitted upon this motion, I am satisfied that a prima facie case for an injunction, both upon the law and the facts, has been made out. The complaint is not multifarious, for the reason that a conspiracy between all the defendants is charged, and the various devices which have been resorted to are but the details of a single scheme and a common purpose. As to the right of action, I am inclined to think that it can be sustained upon the principle that the attaching creditors have a specific lien which entitles them to remove fraudulent obstructions to the due execution of the process. At all events there is enough in the question for the full consideration of the trial court. Upon the whole the motion must be granted, with ten dollars costs to abide the event.
62 How. Pr. 429
Bates v. Plonsky
Decided January 15, 1882
New York Supreme Court · decided 1882-01-15
<p>Action—Bight of attaching creditors to remove fraudulent obstructions to the due execution of process— Complaint—When not mvltifmious—Injunction — Code of Civil Procedure, sections 603, 604, 619.</p> <p>Where the allegations of the complaint showed that plaintiffs have a lien by attachment on a certain stock of goods of defendant, Samuel Plonsky, which lien was acquired December 24, 1881, and still is in force. That on December 13, 1881, Samuel Plonsky made a general assignment to Eli M. Cohen, who claims the said attached property and has notified the sheriff of such claim ; that in said assignment the defendants Anna, Ezekiel and Moses Plonsky are preferred creditors; that the assignment is fraudulent and void, and part of a fraudulent conspiracy between the defendants, and that the preferred claims are wholly or in part fictitious ; that on December 23, 1881, notwithstanding those preferences, the defendant, Samuel Plonsky, confessed judgments to each of the defendants Anna, Ezekiel and Moses Plonsky upon the same debts for which they are preferred in the assignment. Executions were on that day issued to the sheriff, who took possession of the same property attached by the sheriff upon the warrants of plaintiffs. That these executions are prior liens to those of the plaintiff, and sheriff recognizes them as such. It is charged, and the proofs show, that these judgments and executions form and are a part of the conspiracy to defraud the creditors of Samuel Plonsky. The prayer of the complaint is substantially that the obstructions "created by the fraudulent execution and assignment be removed. The action is brought by plaintiffs against Samuel Plonsky, Eli M. Cohen, Anna Plonsky, Ezekiel Plonsky and Moses Plonsky, and a motion is made for an injunction to restrain the defendants from receiving and the sheriff from paying these amounts of the executions:</p> <p>Held, first, that the right of action can be sustained upon the "principle that the attaching creditors have a specific lien which entitles them to remove fraudulent obstructions to the due execution of the process.</p> <p>Second. That the complaint is not multifarious for the reason that a conspiracy between all the defendants is charged, and the various devices which have been resorted to are but the details of a single scheme and a common purpose.</p> <p>Third. That a prima fade case for an injunction both upon the law and the facts has been made out.</p>
Decided 1882-01-15