
    NAPIER v. WESTERHOFF et al.
    (Circuit Court, S. D. New York.
    March 8, 1905.)
    Preliminary Injunction — Insufficiency of Showing.
    The granting of a preliminary injunction and the appointment of a receiver held not warranted, under the pleadings and the proofs on the motions therefor, where the insolvency of defendants was not alleged, and it appeared that the granting of such motions would disastrously affect their business.
    On Motion for Preliminary Injunction and Receiver.
    Olney & Comstock, for the motion.
    Stern & Rushmore, opposed.
   TOWNSEND, Circuit Judge.

The allegations of complainant’s-moving and replying affidavits present a condition of affairs which, if proved, would call for the interposition of a court of equity. Some of these allegations are met by direct denials in the' answering affidavits, but it is not satisfactorily shown by these denials alone that this court ought not to grant some relief. The complaint, however, comprises such a variety of inconsistent charges and prayers for relief that it is difficult to determine- the measure of complainant’s rights, or the extent of the relief which should be .afforded. Furthermore, it is clear that the granting of an injunction and appointment of a receiver would disastrously affect the business of the defendants, while, in the absence of allegation of their insolvency, it does not appear that the complainant will be irreparably damaged by the continuation of said business. For these reasons, it is thought that the questions involved should not be determined upon ex parte affidavits.

Motion denied.  