
    John R. Platt, Respondent, Appellant, v. Hannah Elias, Appellant, Respondent, Impleaded with Others, Defendants.
    
      Injunction to prevent the. disposition, and a ’ temporary receiver appointed, of properly alleged to have been obtained by a woman of bad character from anold.man through illicit intercourse and threats —when improperly granted—presumption that property in the woman’s possession was obtained from the man.
    
    Upon an appeal from an order granting an injunction pendente lite and appointing a temporary receiver in an action, it appeared that the action- was brought by John E. Platt against Hannah Elias and various banks and trust companies -in the city of Hew York to compel an\accounting by the defendants of certain moneys which the defendant Elias was alleged to have obtained from the plaintiff.
    The complaint alleged that plaintiff is a man eighty-four years of age and for some years has been in feeble health and-has retired from business; that the defendant Elias is a negro woman,'the divorced wife of one Davis and is of bad character and reputation; that on the 1st of January, 1896, the defendant Elias had no property nor any pecuniary means; that prior to January, 1896, the plaintiff formed the acquaintance of the defendant Elias and was induced by her to have illicit intercourse with her; that after the defendant Elias had induced the plaintiff to have such illicit intercourse with her, she threatened to expose ' the plaintiff’s relations with-her to her husband and to the plaintiff’s family . and friends and acquaintances and -thereby subject the plaintiff to public scandal and bring him into disrepute With his family, friends and acquaintances and the public, and threatened that, unless the plaintiff would pay over to her large and divers sums of money, she would expose such illicit relations to her husband; that the plaintiff being an old man and in feeble health and having great fear of exposure and scandal, which.would bring him into disrepute and disgrace him in the eyes of his family, friends and former business acquaintances, and being in fear of great bodily harm, did at various -times ‘-between the 1st day of January, 1896, and the 25th day of May, 1904, pay over to said defendant, without any consideration whatever, large sums of money aggregating the sum of §685,385. The complaint further alleged that portions Of this money were invested in certain real estate described in the complaint, and were also deposited in various trust companies and banks and savings banks, defendants in this action.
    The plaintiff demanded judgment that certain real property described in the complaint and certain personal property and bank accounts and deposits held by the defendants, in the name or for the benefit of the defendant Elias; be impressed with a trust in favor of the plaintiff, and that the -’defendants be declared to hold the same as trustees for the plaintiff, and that the defendants and each of them be required to transfer and pay over the same, and any accumulations, rents, profits, interests, or income to the plaintiff; that the defendants and each of them be perpetually enjoined from interfering with, transferring or disposing of said real estate, or with the personal property and money so deposited with or held by them; that a receiver be appointed to collect and hold all rents derived from said real estate and to take and hold the personal property described in the complaint during the pendency of the action, and. for other and further relief.
    The motion for the injunction pendente lite and for the appointment of a tern-, porary receiver was made upon the complaint and an affidavit of the plaintiff which reaffirmed some of the allegations of the complaint, and stated that the sources of the deponent’s knowledge of the facts alleged upon information and belief were statements made by the defendant Elias.
    The defendant Elias in answer to the motion submitted an affidavit in which she denied all allegations of extortion and false representations. She also submitted an examination of the plaintiff taken as the complainant in a criminal charge against her from which it appeared that the allegations of the complaint as to the payment of money to the defendant were made without any knowledge on the part' of the plaintiff, and that the allegations of extortion and false representations and fraud were not sustained by any recollection of the plaintiff. Such examination disclosed that the plaintiff was a man whose mental power was considerably impaired, but it did not appear therefrom that when the payments referred to in the complaint were made he was not in full possession of all his faculties or that he did not voluntarily give the moneys.in question to the defendant. It also appeared from the examination that the plaintiff had no recollection of the various payments which he had made to the defendant Elias and the payments as alleged in his complaint were not in any way_ verified. There was no proof that tlih real property owned by the defendant Elias was paid for by the plaintiff or with moneys furnished by the plaintiff or that the moneys deposited in the various banks and trust companies were furnished by the plaintiff except the general allegation upon information and belief that the defendant Elias had no means except the moneys paid to her by the plaintiff.
    It did not appear that the defendant Elias intended to dispose of the property involved in the action or that th^ plaintiff would be entitled to recover any specific property in the possession of the defendants.
    Held, that the plaintiff was not entitled to an injunction pendente lite or to the appointment of a temporary receiver;
    That there was nothing in the relations existing between the plaintiff and the defendant Elias to justify a presumption that all the moneys in the latter’s hands were obtained from the plaintiff by extortion and duress.
    Hatch, J., dissented.
    Appeal by the defendant, Hannah Elias, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 7th day of September, 1904, granting an injunction pendente lite and appointing a temporary receiver.
    
      • Also an appeal by the plaintiff, John B.' Platt, from so much of said order as directs the receiver to pay the defendant Hannah Elias a monthly allowance of $500 and counsel fees.
    
      L. E. Warren, for the, plaintiff.
    
      Frank S. Black, for the defendant:
   Ingraham, J.:

This, action was brought against this appellant and various banks and trust companies in the city of Hew York, to require an accounting by the defendants of certain moneys alleged to have been obtained by appellant Elias from the plaintiff. The plaintiff demands that certain real property described- in the complaint and certain personal .property and bank accounts and deposits held by the defendants, in the name or. for the benefit of the defendant Elias!, be impressed - with a trust in favor of the plaintiff, and that the defendants be declared to hold the same as trustees for the plaintiff, and that the defendants and each of them be required to transfer and pay over the same, and any accumulations, rents, profits, interests,' or income to the plaintiff; that the defendants and each of them be perpetually 'enjoined from "interfering with, transferring or disposing of said real estate, or with the personal property and , money so deposited with or held by them; that a receiver be appointed to collect and hold all rents derived from said real estate and to - take and hold the personal property described in the complaint' during the pendency of the action,' and for other and further relief. The complaint alleges that the plaintiff is a man eighty-four year's of age, and for some years in feeble health and has retired from business ; that the defendant Elias is a negro woman, the divorced wife of- one I)avis and is of bad character and reputation; that on the 1st of January, 1896, the defendant Elias had no property nor any pecuniary means; that prior to January, 1896, the plaintiff formed the acquaintance of the defendant Elias and Wás induced by her to have illicit intercourse with her; that after the defendant Elias had induced .the plaintiff to have such illicit intercourse with'.,her; she threatenéd.'tp'expose the plaintiff’s relations with her to her husband and to the plaintiff’s family and friends and acquain tances and thereby subject the plaintiff to public ’scandal and bring him into disrepute with his family, friends and acquaintances and the public, and threatened that unless the plaintiff would pay over to her large and divers sums of money, she would expose such illicit relations to her husband; that the plaintiff being an old man and in feeble health and having great fear of exposure and scandal, which would bring him into disrepute and disgrace him in the eyes of his family, friends and former business acquaintances, and' being in fear of great bodily harm, did at various times between the 1st day of January, 1896, and the 25th day of May, 1904, pay over to said defendant^ without any consideration whatever, large sums of money aggregating the sum of $685,385. The complaint further, alleges that portions of this money were invested in certain real estate described in the complaint, and were also deposited in various trust companies and banks and savings banks, defendants in this action.

Upon this complaint and an affidavit of the plaintiff, which reaffirmed some-of the allegations of the complaint, and stated that the sources of the deponent’s knowledge of the facts alleged upon information and belief were the statements made by the defendant Elias, the plaintiff applied to the Special Term for an injunction during the pendency' of the action as prayed for in the complaint. In answer to this application, an affidavit of the defendant Elias was submitted which denies all allegations of extortion and -false representations, and there was also submitted an examination of the plaintiff taken as the complainant in a criminal charge against this defendant appellant from which it appears that these allegations in the complaint as to the payment of money to the defendant were made without any knowledge on the part of the plaintiff, and that the allegations of extortion and false representations and fraud were not sustained by any recollection of the plaintiff. There was no competent proof in this record, considering the statement of the plaintiff upon his examination in the criminal proceeding, which would justify a finding of facts sufficient to sustain a cause of action against anybody. The payments are alleged to have extended over a period of eight years. His examination would appear to disclose a man whose mental power was considerably impaired ; but there is no evidence to .show that when the payments were made he was not in full possession of his faculties and knew what he was doing, and voluntarily gave the appellant any sum of money that lie gave her. It is also apparent from the examination that the plaintiff had no recollection of the Various payments that he made tó her; and the payments as alleged in the complaint were not in any way veri- . fled. 'Nor is there proof tliat the real property owned by the defendant Elias was paid for by the plaintiff, or with money furnished by the plaintiff; or that the money deposited in the various banks and trust companies was furnished by the plaintiff,, except the general allegation upon information and belief that the defendant Elias had no means, except the moneys paid to her by the plaintiff.

, The whole- case is based solely upon the fact that an old rich man had paid large sums of money to a negro prostitute, and a, court of equity is, therefore, asked to assume that all moneys in the hands of this negro prostitute came from the plaintiff; that she had' procured the money from him by fraud or duress, and that he was entitled to recover from her everything that she had. The order granted' is that during the pendency of the action and until the further order of the court, the defendant, Hannah Elias, be enjoined and restrained from selling, conveying, incumbering, disposing of or otherwise interfering with the real and personal property belonging to her, and the. various banks -and trust, companies were enjoined from paying out any deposits standing in her name, or any other personal property held by them for her, and appointing a receiver of all real and personal property, other than the moneys on deposit in the defendant banks and trust companies, now in the possession or tinder the control of the defendant Elias, her agents or servants, and all stocks, bonds, bank books, mortgages, certificates of deposit, or other evidences of indebtedness belonging to the said' Hannah Elias or held in trust for her or for her account.

The learned judge who granted the injunction puts it upon the ground that the action is brought to recover money paid by the plaintiff because of the defendant’s threats to expose him, and because of the fear that she would carry out those threats if he did not .meet her demands -for money, and that if she acquired the plaintiff’s money in the manner complained of by him, she acquired it feloniously, and money so acquired and the proceeds and profits thereof may be followed by the real owner and recovered, and a court of equity will impose a trust thereon in liis favor. But taking the allegations of. the plaintiff in his complaint and affidavit, and the evidence before the police magistrate, it is apparent that the plaintiff’s statement in his complaint was not justified by any recollection of his as to his relations with the woman. 'Upon that examination he repeatedly states that he was not afraid of anything that she might do, and that no threats were made by her that would justify any claim of extortion.

To justify an injunction the plaintiff must bring the case within subdivision 1 of section 604 of the Code of Civil Procedure. That subdivision provides that “ where it appears by affidavit that the defendant during the pendency-of the action is doing, or procuring, or suffering to be done, * * * an act in violation of the plaintiff’s rights respecting the subject of the action, and tending to render the judgment ineffectual, an injunction order may be granted to restrain him therefrom.” blow, nothing of this kind appears in the affidavit upon which this motion was granted. There is no evidence that the defendant appellant intends to dispose of this property, or that the plaintiff will be entitled to recover any specific property in the possession of the defendants. As I view it, the plaintiff is no more entitled to an injunction in this action than in any case in which a cause of action is alleged against a defendant and the plaintiff then asks to sequestrate all of the defendant’s property so that it may be held to apply to any judgment which 'lie may obtain against the defendant.

For the same reason I think the order appointing the receiver was unjustified. There was no property in the hands ofs this defendant shown to be the property of the plaintiff or to which he was entitled. We may assume that the facts alleged in the complaint are sufficient allegations to sustain a cause of action ; but before the court is justified in appointing a receiver the facts upon which such relief is granted must be proved by competent legal evidence. I think that there was no evidence of the facts necessary to justify the granting of such relief. There was certainly nothing in the relation of these parties to justify a presumption that all the money in the hands of the defendant appellant was obtained from the plaintiff by extortion or duress, and there is an absence of proof that the plaintiff was not in full possession of his faculties, or that whatever money he gave to the defendant appellant was not voluntarily given.

It follows- that' the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten, dollars costs. - ■ •-

Patterson, McLaughlin and Laughlin, JJ., concurred; Hatch, ' J.,. dissented. , .«•

Hatch,-J.

(dissenting) :■

■ The conceded facts in this case show that John B, Platt,>tlie plaintiff, some eighteen yearsprior to t-lie present application. became intimate with a negro prostitute named Hannah Elias, and from that time down, to the year 1904 he continuously had illicit-relations- with her. For the’mhst part of that time she was a common prostitute. At the inception of the illicit relations Platt was about sixtysseven years of age and Hannah Elias- about twenty. The evidence ■ discloses that Hannah Elias soon began to exercise a marked influence over Platt. She early threatened to expose the illicit relations' existing between them and to bring him into the scandal and disgrace which publicity would involve; she also excited his fears by representing that he was liable.to physical violence at the hands- of her 'husband, and also threatened to charge him. with. tire paternity of an illegitimate child. By these means and others, and by constantly ministering to the debased passions of Platt, she came in the course" of time to have him almost, if not completely, under her- control and influence. ■ Beginning with the year 1896, when Platt was about seventy-seven years of age, she induced him to advance her $19,075, and in the several years following down- to about May 25,1904, she received annually from him sums of money, the amount in 1903 -being $186,409, and for the portion of the year 1904 $31,533, in all amounting to the sum of -$685,385. Considering the payment of this enormous sum of money by a white man to a negro prostitute,, based upon no other consideration than that of illicit intercourse, it does not" need a'great amount of additional protif to establish the existence of a supreme- and controlling influence of the prostitute over the man and in the latter a weakness as pitiable-as it is deplorable. ' Ho number of written or spoken words can add strength to the condition which these undisputed facts establish, and not a single one of them is denied or controverted "in the slightest degree. It seems to me'that it would be a travesty on justice if the law can afford no relief in protection of such of this money and property as remains in the hands of Hannah Elias until a final judgment and determination of the court upon a trial be had. As early as 1741 Hardwioke, Lord Chancellor, declared unenforcible a note given by a man to a common prostitute based upon the consideration of illicit intercourse. The basis of the decision, as expressed by the lord chancellor, is in these words: And the ground wherefore the court relieves against these securities is from a. presumption, that as women of the town are full of • design and artifices to impose upon people, that they therefore do make use of such artifices, and are guilty of some fraud or imposition, in getting such notes; and this presumption is made from general principles of policy, to discountenance the offence and to destroy the credit of such securities; and therefore to prevent women of the town taking any advantage of their artifices, the court says such a general presumption shall run against them that they may take no advantage of such securities.” (Robinson v. Cox, 9 Mod. 263.) The rule thus announced has been followed by the courts in this country. (Leighton v. Orr, 44 Iowa, 679; Sarnia v. Wilcox, 53 id. 547.) In the latter case the court said: “ The exercise of unlawful influence will be presumed when the parties to a deed live in adulterous relations, in the absence of proof of a lawful consideration. These rules are in accord with sound reason and legal principles. Their application will tend to restrain immorality.' Ho paramour should be permitted to enjoy the wages of her sin, which she obtains through the generosity of her victim, stimulated by her ministry to his passions.” (Dean v. Negley, 41 Penn. St. 312; Shipman v. Furniss, 69 Ala. 555; Bivins v. Jarnigan, 62 Tenn. [3 Baxt.] 282; Kessinger v. Kessinger, 37 Ind. 341.) In Cooley on Torts (2d ed. p. 603) the learned author states: “Where a transaction is brought about while the parties are living in illegal sexual relations, it is always open to suspicion of fraud or undue influence; and if it is a gift, or a sale for an inadequate consideration, or if it is specially beneficial to one party rather than to the other, the party benefited by it will be under the necessity of showing that no advantage .was taken, and that it was the result of free volition.” It is evident from these authorities that the law is not powerless to grant relief in a proper case, and if this be not such á case I am at a loss to imagine one.

It is said, however, that the testimony of Platt taken upon a ■ criminal proceeding against Hannah Elias tends strongly to establish that the payment of these sums of money was voluntary upon his part, and, therefore, he is not entitled to relief. Perhaps this is true, but the testimony also establishes that Hannah Elias when . the illicit relations began was a young woman about twenty years of age. When the plaintiff began to give her money she was a strong Woman, physically and intellectually. Platt was a' feeble, old man, physically and mentally, and in ¿proportion as he decreased in physical and mental power his gifts to her increased in size. When he testified in the Police Court he was an old man in his dotage, with a rambling intellect, insensible alike to his breach of morality or to his present condition. It presented a spectacle of strength .and viciousness overreaching old age and weakness. The relations themselves and the relative condition of the' parties coupled with the magnitude of the amount extorted establishes beyond perad- • venture that the voluntary character of the gift was such as a tigress exacts from a helpless victim, ii is further said that the -money and property which has been tied up by the injunction order is not shown to have been the property and moneys received hy Hannah Elias from Platt. Upon this subject it is sufficient to say that the complaint avers it to be such property and money, and the affidavit of Hannah Elias does not deny such averments. She alleges ■ that she had considerable property and money prior to 1896, and she admits that during the years specified in the complaint she received divers sums of money, the amount of which-she is.unable to state, and then she denies any intention of disposing of the money or property, except for the support and maintenance of herself and her child. The admitted facts upon this subject which show the character of the woman, her ability and means óf obtaining money and property make it plain that the great bulk of that of which she is now possessed must have come from the source averred in the complaint, and the failure to deny that it did not is an admission of the fact. The liability of waste and improper disposition of the property sufficiently appeared to authorize the exercise of the" ■discretionary power in granting the injunction. ■' (Van Orden v. Ledwith, 44 App. Div. 580.) Under the peculiar circumstances of this case and the relations of these parties the discretionary power thus exercised should not be interfered with.

The order should, therefore, be affirmed, with ten dollars costs and disbursements.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  