
    ELIZABETH M. MOFFETT, Respondent, v. IRA B. TUTHILL, Impleaded, etc., Appellant.
    Appeal from an order at Special Term, continuing an injunction restraining the defendant Tuthill from proceeding with an action to foreclose a mortgage on plaintiff’s land. It was alleged in the complaint, in the present action, that after the mortgage was given, for the foreclosure of which the action was brought by the defendant Tuthill, an agreement had been entered into by which certain property was to be sold by the defendant Tuthill, and one Dean (not a party to the foreclosure suit), and the proceeds applied on the mortgage held by Tuthill. It further alleged that sufficient-property had been sold to pay said mortgage, and asked for an accounting as to the proceeds of the personal property, and on application at Special Term, an injunction order was granted staying further proceedings in the foreclosure suit. The court at General Term was of opinion that the right of the suitor to the injunction in such a case was no longer an open question, and whether it should be granted or not rested in the discretion of the court at Special Term.  That the defendant Dean, not being a party to the foreclosure suit, could not be held responsible in that suit for any abuse of his trust; and that an accounting being evidently necessary in this case to settle the rights of the parties, it should be had in an action in which Dean was a party.
    
      Miller & Tuthill, for the appellant.
    
      Skinner & Wood, for the respondent.
    
      
      Erie Railway Company v. Ramsey, 45 N. Y., 637.
    
   Opinion by

Brady, J.

Present — Davis, P. J., Brady and Daniels, JJ.

Order affirmed with ten dollars costs and disbursements.  