
    Louis E. Bomeisler, as Executor, etc., of Salvatore Cantoni, Deceased, Respondent, v. Elsa Forster, Appellant.
    
      Equity will not interfere where the party has a perfect defense (a release of the cause of action) at lam — a preliminary injunction restraining the prosecution of an action at law—not res ad judicata.
    A court of equity will not interfere to enjoin a pending suit at law to which there exists a perfect legal defense, nor where the ground for relief is as equally available at law as in equity; where the matters of defense are equally available in a court of law, the fact that they are complicated and that it is more difficult to present them there, is not a sufficient reason that equity should interfere.
    Where an injunction is asked for, the fact that a preliminary injunction was granted upon affidavits, will not make the decision of the motion an adjudication in the case binding upon the trial thereof.
    In an action brought by one Salvatore Cantoni to restrain the defendant from prosecuting an action which she had brought in the Superior Court of the city of New York, or from bringing or prosecuting any other action against him, upon the cause of action set out in such action, it appeared that Cantoni had induced the defendant, as she alleged, to leave her husband, and to procure a divorce; and that by promising to marry her he had induced her to live with him as his wife; that they had had several children, and that he had cast her off, and had refused to fulfill his promise to her.
    After they had parted he induced her to execute a general release to him upon the payment of sixty dollars, which release she alleged was procured by fraud. After she had executed the release she brought an action against Cantoni for the damages growing out of his failure to perform his promise to her. This action was settled by the payment by Cantoni to the defendant of $6,000, and the defendant then executed an agreement, by which she agreed not to commence any action whatever upon any cause of action which she had against Cantoni, and made various affidavits admitting away her rights.
    About two years later she brought another action against him based upon substantially the same facts, she claiming that the agreement not to sue was procured by fraud.
    The plaintiff thereupon brought the present action, on the trial of which all that appeared was that the defendant claimed to have a cause of action against Cantoni; that she had been induced by the payment of sixty dollars to release it; that after the release had been executed she claimed that it had been procured by fraud, and began a suit to enforce the cause of action covered by the release, and by the payment of a substantial consideration was induced to discontinue such suit, and promise not to sue Cantoni upon the cause of action alleged herein, notwithstanding which she brought another suit, the further prosecution of which the present action was brought to restrain.
    On appeal from a judgment in favor of the plaintiff, it was Held, that the action in equity could not be maintained as, if the release given by the defendant was valid, it afforded the plaintiff a perfect defense to her action at law;
    That a preliminary injunction restraining the defendant from annoying Cantoni might have been justified, under the allegations of the complaint and the moving papers to the effect that Mrs. Forster threatened to follow the plaintiff to his place of business, and there openly accuse him of having done the things alleged in the complaint; to stand upon the sidewalk threatening and importuning and harassing him, and to sit upon his door step, accusing him of these acts, until she could get money from him, but that the decision of the motion, was not an adjudication binding upon the trial of the case, and that the facts (above stated) established upon the trial did not justify the granting of equitable relief to the plaintiff.
    Appeal by the defendant, Elsa Forster, from a judgment of the Superior Court of the city of 3$Tew York in favor of the plaintiff, entered in the office of the clerk of. said court on the 30th day of December, 1895, upon the decision of the court rendered after a trial at a Special Term thereof.
    
      
      Samuel H. Randall, for the appellant.
    
      Charles W. Brooke and Louis Edwin Bomeisler, for the respondent.
   Rumsey, J.

This action was brought to restrain the defendant from prosecuting an action which she had brought in the Superior Court of the city of Hew York against Cantoni, who was the original plaintiff here, or from bringing or prosecuting any other action or proceeding in law or equity against him upon the cause of action set out in the pending action in the Superior Court, to procure judgment declaring a release given by the defendant to him a perpetual bar against all such actions, and to restrain the defendant from in any manner prosecuting, harassing, importuning, communicating with or annoying him personally, or by procurement or otherwise, orally or in writing, by virtue, of certain matters which were set out in the complaint.

It appears from the complaint that the defendant claimed that she had been induced by Cantoni, several years before, to procure a divorce from her husband and to live with him as his wife; that she had lived with him for several years; that she had by him four children, of whom two were living; that she had received from him while she so lived with him $5,000 a year for her support; that he had made to her a promise to marry her, which was the inducement for her-to live with him as she did; that he had become tired of her and turned her off with her children, leaving her without support, and refused to perform his promise. It is fair to infer from the testimony in the case that these allegations were, to a very considerable extent, true. Indeed it was assumed all through the case that, while they were denied • by Cantoni, there was no substantial question as to their accuracy. It appears that after the relations between Cantoni and the defendant had ceased she was induced, upon payment of the sum of sixty dollars, to execute to Cantoni a release of all causes of action which she might have, and especially of those growing out of her claim against Cantoni by reason of his failure to keep his agreement to marry her. This release was dated on the . ,21st, day of May, 1892. The defendant claims that the release was procured by fraud. After she had made it, and on the 31st day of May, 1892, she brought an action against Cantoni, the original plaintiff here, for damages growing out of his failure to perform his promise to her. After this action was begun various negotiations took place between the parties for a settlement, and the result was, that on the second of June there was paid to the attorneys for the plaintiff (the defendant herein) the sum of $1,000, and an agreement was made that the action commenced on the thirty-first of May should be discontinued; that Mrs. Forster should sign various affidavits, which were drawn up for her by the attorney for Cantoni, admitting away her rights in the action which she had brought, and that she should go to California and there remain, and that she should no longer trouble him. It was also stated that, as a further consideration for the payment of the money, Mrs. Forster agreed that she would never commence any suit whatever on any cause of action she liad against Cantoni, more particularly referring to the claim that she set up against him for being the father of her children and for having induced her to get a divorce from her former husband, and for the alleged promise to marry her and the housekeeping claim. The defendant went to California. After she got there she received $5,000, that being the balance of the $6,000 which she was to receive as a consideration for the settlement of the action. She remained there until the month of March, 1894, when she returned to this city and began another action against Cantoni, alleging substantially the same facts as had been set up in her action of 1892. Thereupon Cantoni brought his action, asking for the relief mentioned in the former part of this opinion. Opon the trial the plaintiff succeeded and judgment was entered, giving him substantially all the relief that he asked for. It is from that judgment that this appeal is taken. After the trial of the action Cantoni died and his executor was substituted as plaintiff.

An examination of the record shows various errors in the rulings of the court in the admission of evidence, which would be sufficient, if there were no other reason, te' require the reversal of this judgment and the granting of a new trial. But we are not disposed to put our decision upon the ground of errors occurring upon the trial in the admission of evidence. In our judgment the facts proved upon the trial, giving them their very broadest effect, are not sufficient to entitle the plaintiff to any judgment in this action, and the complaint should have been dismissed upon the merits. It may be that the complaint, taking all its allegations together, set out a sufficient cause of action in equity to entitle the plaintiff, if he had proved those allegations, to a judgment forbidding the defendant from importuning or harassing him by reason of the facts which she alleged against him. But the allegations of the complaint were not proved upon the trial. All that appeared upon the trial was, that Mrs. Forster claimed to have a cause of action against Cantoni; that she had been induced by the payment of sixty dollars to release that cause of action and all of it; that after the release had been executed, she, claiming that it had been procured from her by fraud, began a suit to enforce the cause of action which was apparently covered by the release; that afterwards, by the payment of a substantial consideration, she was induced to discontinue that action, and to promise again that she would not sue Cantoni upon that or any other cause of action; and that afterwards, in defiance of that agreement, she did commence another suit upon the same cause of action. Mo proof was made upon the trial that she had in any other way harassed Cantoni, that she had followed him to his place of business, or approached him in the street, or importuned him for relief ; but the plaintiff’s case when the evidence was closed stood solely upon the fact that a suit had been begun against Cantoni after Mrs. Forster-had executed a release of the cause of action. This release was a perfect defense to the action which was begun in March, 1894.

It is well settled that legal proceedings will never be enjoined on grounds of which the person aggrieved may avail himself in defense of the action at law. The rule is practically without exception, as laid down in Beach on Modern Equity Jurisprudence (§ 654), that “ a court of equity will not interfere to enjoin a pending or threatened suit at law to which there exists a perfect legal defense, or where the ground for relief is as equally available at law as in equity. And if the matters of defense a-re equally available in the court of law, the fact that they are complicated and more difficult of presentation there is not sufficient reason for the interference of equity.” (See, also, High on Injunctions, §§ 89, 90.) There can be no doubt that the execution of this release, if it was fairly obtained from Mrs. Forster without fraud, was a perfect defense, not only to the action begun in 1892, but also to that begun in 1894, to restrain which this action in equity was brought. The case is precisely within the rule laid down as above ; and for that reason, when the evidence was closed, it was the duty of the court at Special Term to dismiss the complaint.

The case of Baker v. Hawkins (14 R. I. 359) is not at all in point. In that case the plaintiff was permitted to maintain his action in equity upon the sole ground that it would thereby prevent a circuity of action because the defense which he had to the action at law could not be presented in that case and was solely cognizable in equity. The case of Wright v. Fleming (76 N. Y. 517), which is cited by the respondent as a decision in his favor, is directly the other way. It was held there that the allegations of the complaint upon which the court was asked to restrain the proceedings before the surrogate, because of the execution of the release, were not sufficient to warrant the injunction or to constitute a cause of action, and that the complaint should have been dismissed. We cannot understand how the learned counsel for the respondent could have been so misled as to assert that the complaint in that action was held to be sufficient.

But it is said that the decision upon the motion for a preliminary injunction should be regarded as an adjudication in the plaintiff’s favor in this case. The rule is well settled that in actions in equity where an injunction is asked for, the granting of a preliminary injunction upon affidavits will not be regarded as res ackjudicatavrhen. the case comes to be tried. {Banks v. Amer. Tract Soc., 4 Sandf. Oh. 438.) All that could have been decided upon that motion was, that upon the facts stated in the complaint and in the moving affidavits it was proper for the court to exercise its discretion to restrain Mrs. Forster, during the pendency of the action, from doing any of the acts which it was alleged she threatened to do and which it was plain would, if done, have caused serious injury to the plaintiff. It was alleged in the motion papers upon that motion that Mrs. Forster threatened to follow the plaintiff to his place of business and there openly accuse him of committing the acts which she had alleged in her complaint lay at the foundation of her cause of action, and to stand upon the sidewalk threatening - and importuning him and harassing him, and to go to his residence and sit upon his door step and accuse him of all those acts, and to harass him until such time as she could get money from him. It was because of those allegations that it was proper to grant a preliminary injunction restraining the commission of those acts, and it was perfectly proper, in the discretion of the court, when it was alleged that such acts were threatened, not only to require Mrs. Forster to refrain from doing those acts, but also to restrain her from the further prosecution of the action at law until the truth of the allegations of the plaintiff set up in this action could be examined. But the adjudication upon that motion goes no further than a holding that, if all the facts alleged upon which the injunction was granted were proven, they would constitute a good cause of action and a good reason for granting a temporary and preliminary injunction. They were not proven upon the trial, and for that reason the decision upon the motion for a preliminary injunction lost its weight as an adjudication. Upon the trial the only thing that was proven, as we have already stated, was that a release had been given which, if valid, was a perfect, defense to this action; that there had been an agreement not to sue,, made upon sufficient consideration, which, if valid, was also a defense to the action, and that it was claimed by Mrs. Forster that each of' those papers was procured from her by fraudulent statements and without explaining to her the effect of them. This clearly presented an issue which might have been tried in the action at law, and which should have been presented to a jury.

It is not necessary that we should comment upon the remarkable, state of facts presented by the testimony and the affidavits in this-action. They are alike discreditable to all parties who are connected Avith them. It is sufficient to say that, giving the facts proved by the plaintiff the greatest weight that they are entitled to, and disregarding all errors in the admission of evidence committed upon the trial to the detriment of the defendant, the plaintiff did not establish a cause of action entitling him to the relief that he demanded.

The judgment of the Special Term should, therefore, be reversed, Avith costs, and judgment ordered for the defendant dismissing the complaint, with costs, and permitting her to try in the action at law the truth of the facts which she has alleged, and the validity of the release and agreement which is set up as a defense to them.

Vak Brunt, P. J., Barrett, Williams and Patterson, JJ., concurred.

Judgment reversed, with costs, and judgment ordered for defendant dismissing complaint, with costs.  