
    SUPREME COURT.
    Patrick Fullan agt. John Hooper.
    
      Injunction—when will not be grunted in equity actions — not granted when want of equity is established by preponderance of proof—Sufficiency of undertaking—Code of Civil Procedure, sections 618-812.
    No action in equity will lie to restrain the enforcement of a judgment rendered by a court of record on the ground that the defendant in the action in which the judgment was rendered was not served with process. The plaintiff has an adequate remedy at law by motion in the original action.
    Where the whole equity of the bill is not only denied, but its want of equity is established by a preponderance of proof, an injunction is never granted.
    There is no authority for the granting of an injunction restraining the enforcement of a judgment except on an undertaking providing absolutely for the payment of the judgment, with interest and costs.
    
      N. Y. Chambers, November, 1883.
    Motion to vacate an injunction restraining the enforcement of a judgment in an action for a perpetual injunction.
    
      Samuel Utermeyer, for defendant.
    
      Cooper & Whitlock, for plaintiff, opposed.
   Potter, J.

This is a motion to set aside an injunction granted in this action to restrain the defendant from enforcing a judgment which this defendant obtained against the plaintiff in 1871. The motion must be granted upon three grounds :

First. The plaintiff has a remedy at law (Savage agt. Allen, 54 N. Y., 458, and the cases there cited). The defect here complained of is that the summons was not served in the action in which the judgment was obtained. If such was the case the judgment would be set aside upon motion. That is perhaps the reason that no case is found when an action was brought in equity to set aside such judgment with an injunction to restrain its enforcement.
Second. The whole equity of the complaint is not only denied, but its want of equity is established by a preponderance of proof (40 How. Pr., 233).
Third. The undertaking given by the plaintiff in procuring the injunction is not sufficient for that purpose (Secs. 613 and 812, Code of Civil Procedure).

Motion to vacate injunction granted, with ten dollars costs of motion.  