Harris v. Cuff. neglected to pay the costs, - Held, that this fact furnished no defense to the claim of the plaintiff's attorney for his costs; that a settlement of the appeal pending the action, was not affected by the mere signing of the agreement, as a stoppage of the appeal was contingent upon the payment to the attorney of his costs, etc. ; that the attorney's knowledge of the settlement was not destructive of his lien, and that a motion by the attorney to dismiss the appeal should be granted, unless the defendant pay the costs according to the agreement, together with the costs of the motion. (Decided May 14, 1888.) Motion by plaintiff's attorney to dismiss an appeal taken by the defendant from a judgment in favor of the plaintiff. The facts are stated in the opinion. F. J. Ritch, Jr., for respondent and motion. Goodrich, Deady & Goodrich, for appellant, opposed. BARNARD, P. J.-The plaintiff is a ship-builder, and was employed by the defendant to repair a vessel called "William S. Homer." The bill for the work was not paid, and the plaintiff obtained a judgment therefor, which was pending in this court on appeal. The parties then entered into an agreement by and under which the plaintiff was to do more work on the same vessel at an agreed price. The contract then provided as follows: "And Harris to stop the case now pending between Harris and Cuff on sloop W. S. Homer, on the following conditions: For the party of the second part (Cuff) to settle all taxable and legal costs incurred in the above suit to September 14, 1885." The agreement then provided for other work to be done on the schooner "William Bickly," presumably, but this is so blindly stated that the work may refer to the "Homer." It appears that the plaintiff did not perform the agreement as to the new work to be done under the agree Cushing . Ruslander. ment. This fact furnishes no defense to the claim of the attorney for his costs. The costs were the earnings of the attorney, and the agreement respected his rights by providing for his payment. The settlement of this appeal was not effected by the mere signing of the agreement, as there was no provision for the payment of the attorney at all hazards. If he was paid, the appeal was to be stopped, otherwise this part of the agreement was inoperative. The attorney's knowledge of the settlement is not destructive of his rights. If he is paid, he will get under the agreement what he is entitled to, and if not, the judgment is not settled. The motion to dismiss the appeal should be granted, unless the defendant within ten days pay the costs, according to the agreement, with $10 costs of this motion. PRATT and DYKMAN, JJ., concurred. CUSHING ET AL., RESPONDENTS, v. RUSLANDER ET AL., APPELLANTS. SUPREME COURT, FIFTH DEPARTMENT JUNE, 1888. $$ 603, 604, 607. GENERAL TERM, Injunction when not granted on ground that nature of action authorizes -when complaint held to be an affidavit. Where, in a judgment creditor's action to set aside a general assignment for the benefit of creditors and also to set aside confessed judgments entered against the judgment debtor, it is alleged that a stock of goods belonging to the debtor has been levied upon under execution issued upon the judgment sought to be set aside and sold thereunder, and that the money or some part derived therefrom, still remains in the hands of the sheriff, but there is no Cushing v. Ruslander. allegation in the complaint that the payment of the money by the sheriff upon the execution to the judgment creditors therein will render the action ineffectual and embarrass and prejudice the plaintiffs, and no demand for a temporary or permanent injunction restraining such payment,-Held, that the complaint did not make out a case in which a temporary injunction under Code of Civil Procedure, 603, dependent upon the nature of the action, could be obtained; [1-4] that in such a case the right to the injunction must appear from the complaint. [3] Where, in such a case, an injunction is granted upon the complaint and upon an affidavit which set forth facts tending to show that the confessed judgments were recovered upon fictitious indebtednesses, and also that in case the sheriff passed over the money on the executions to the judgment creditors therein, it would tend to render any judgment recovered in the judgment creditor's action ineffectual and would greatly embarrass and prejudice the plaintiff's therein, in the enforcement of their rights, and be in violation of the same, but which did not contain the allegations of the complaint in reference to the plaintiffs obtaining judgment against the defendants and the confession of judgments to various persons, and these facts are alleged in the complaint upon information and belief,-Held, that the papers upon which the injunction was granted, were not sufficient to sustain the same. [1,2,6,10] The provision of section 607 of the Code of Civil Procedure,—that an injunction order may be granted "where it appears to the court or a judge, by an affidavit of the plaintiff or other person, that sufficient grounds exist therefor,"-applies both to section 603 of the Code of Civil Procedure,-which provides for the granting of an injunction, dependent upon the nature of the action,—and to section 604,-providing for the granting of an injunction upon facts extrinsic to the cause of action. [7] Where an injunction is granted upon facts extrinsic to the cause of action, under Code Civil Procedure, section 604, the fact entitling the party to the injunction must appear by affidavit. [5] An injunction dependent upon the nature of the action can only be Chatterton v. Kreitler (2 Abb. N. C. 453), followed. [8] 1 Cushing v. Ruslander. affidavit; but where the allegations of the complaint are upon information and belief, the ordinary verification is not sufficient. [9] (Decided June 23, 1888.) Appeal by defendant from an order of the Erie county special term denying a motion made by them to vacate and set aside a temporary injunction restraining the payment by the sheriff of Erie county of moneys collected under an execution during the pendency of this action. The other facts appear in the opinion. Lewis & Moot, for the Third National Bank of Buffalo, defendants-appellants. Parker & Schwartz, for other defendants-appellants. J. L. Romer, for plaintiffs-respondents. HAIGHT, J.-The motion to vacate the injunction was made upon the papers upon which it was issued. They consisted of a complaint verfied in the form prescribed by the Code and an affidavit of John L. Romer. The allega tions of the complaint are upon information and belief, [] and in substance allege that the plaintiffs on July 7, 1887, obtained a judgment against the defendant, Moses Ruslander, for the sum of $2,386.39; that the same was duly docketed, execution issued thereon and returned unsatisfied; that in the year 1886, Ruslander was engaged in business as a manufacturer and dealer in clothing and men's furnishing goods in the city of Buffalo, N. Y., and, also, at Bradford, Pa.; that he borrowed certain sums of money of the defendant, the Third National Bank, with which to preserve his credit by paying his indebtedness then maturing in whole or in part, that he might be enabled to make further purchases by means of credit so obtained, and stock his stores in Buffalo and Bradford, with the intention on his part of thereafter making an assignment of his property containing prefer Cushing v. Ruslander. ences in a large amount in favor of parties friendly to him, and with the intention by so doing to defeat and delay his other creditors; that such purchases were made, and thereafter judgments were confessed by him in favor of various individuals who were named, among which were four judgments in favor of the defendant, The Third National Bank. That, after the levying of executions upon the judgments so confessed upon his stock of goods in the city of Buffalo, and in the city of Bradford, he executed and delivered to the defendant, Georger, a general assignment of all his property in trust for creditors, in which the parties to whom judgments had been confessed, were preferred. The complaint further alleges that the confessions of judgments were made and given, as was also the assignment, as a part of one and the same scheme, whereby the defendant, Ruslander, hoped and intended to obtain certain benefits and advantages for himself, and were so made and given, after repeated consultations between him, his counsel, and parties representing The Third National Bank, and other defendants, as to the best means of extricating himself from his business embarrassments, and with intent on his part to cover up and manipulate his property, that he might, though the co-operation of the judgment creditors preferred as aforesaid, regain the possession of his property, or some part thereof, and deal therewith, and derive benefit and advantage therefrom, and with the intent to put and keep his property out of the reach of the plaintiffs, and his other creditors, and to defeat and delay them in the collection of their debts. It appears, further, from the allegations of the complaint, that the stock of goods so levied upon by the executions were sold, and that the money, or some part thereof, still remains in the hands of the sheriff of Erie county. Judgment was demanded that the judgments so confessed, and that the general assignment be declared fraudulent and void, and that a receiver be appointed, etc. |