
    Sidney Cushing et al., Resp’ts, v. Moses Ruslander et al., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23,1888.)
    
    1. Injunction—When granted—Code Civ. Pro., § 603—What the complaint must show.
    When the application for the injunction depends upon the nature of the action, and is obtained under section 603 of Code of Civil Procedure, the complaint must show that the plaintiff is entitled to the injunction during the pendency of the action.
    2. Same—Application op Code Civil Pro., § 607—When the complaint IS TO BE HELD AS AN AFFIDAVIT.
    The provisions of Code of Civil Procedure, § 609, are general, and apply as well to the provisions of section 603 as to those of section 609. Where the allegations of the complaint are positive, and are not on information and belief, and the allegations are sworn to be true, the complaint will be treated as an affidavit, but where the allegations are upon information and belief, the ordinary verification is not sufficient.
    Appeal from an order of the Erie special term denying.' motion to vacate and set aside an injunction pendente lite.
    
    
      J. L. Romer, for resp’ts ; Lewis & Moot, for app’lt, The Third National Bank of Buffalo ; Parker & Schwartz, for other appellants.
   Haight, J.

The motion to vacate the injunction was made upon the papers upon which it was issued. They consisted of a complaint verified in the form prescribed by the Code and an affidavit of John L. Romer. The allegations of the complaint are upon information and belief, and in substance allege that the plaintiffs on the 7th day of July, 1887, obtained a judgment against the defendant, Moses Ruslander', for the sum of $2,386.39 ; that the same was duly docketed, execution issued thereon and returned unsatisfied.

That in the year 1886, Ruslander was engaged in business ■ as a manufacturer and dealer in clothing and mens’ fur nishing goods in the city of Buffalo, N. Y., and, also, at Bradford, Pa.; that he borrowed certain sums of money of the defendant, the Third National Bank, with which to preserve his credit by paying his indebtedness then maturing in whole or in part, that he might be enabled to make further purchases by means of credit so obtained, and stock his stores in Buffalo and. Bradford, with the intention on - his part of thereafter making an assignment of his property containing preferences in a large amount in favor of parties friendly to him, and with the intention by so doing to defeat and delay his other creditors; that such purchases were made, and thereafter judgments were confessed by him in favor of various individuals who were named, among which were four judgments in favor of the defendant, The Third National Bank. That after the levying of executions upon the judgments so confessed upon his stock of goods in the city of Buffalo, and in the city of Bradford, he executed and delivered to the defendant, Georger, a general assignment of all his property in trust for creditors, in which the parties to whom judgments had been confessed, were preferred.

The complaint further alleges that the confessions of judgments were made and given, as was also the assignment, as a part of one and the same scheme, whereby the defendant, Ruslander, hoped and intended to obtain certain benefits and advantages for himself, and were so made and given, after repeated consultations between him, his counsel and parties, representing The Third National Bank, and other defendants, as to the best means of extricating himself from his business embarrassments, and with intent on his part, to cover up and manipulate his property, that he might, through the co-operation of the judgment creditors, preferred as aforesaid, regain the possession of his property, or some part thereof, and deal therewith, and derive benefit and advantage therefrom, and with the intent to put and keep his property out of the reach of the plaintiffs, and his other creditors, and to defeat and delay them in the collection of their debts.

It appears further from the allegations of the complaint, that the stocks of goods so levied upon by the executions were sold, and that the money or some part thereof, still remains in the hands of the sheriff of Brie county. Judgment was demanded that the judgments so confessed, and that the general assignment be declared fraudulent and void, and that a receiver be appointed, etc. The injunction obtained, restrains the sheriff from paying over the money in his hands, derived from such sales until the further order of the court.

The affidavit of Mr. Romer, upon which the injunction was also issued, contains a statement as to the allegations contained in the complaint, in an action brought by The Third National Banks of Buffalo v. Charles Georger and Others, tending to show that the indebtedness upon which his judgment was confessed was ficticious. He also states in his affidavit that in case the sheriff pays over the money on the executions to the judgment-creditors, it will tend to render any judgment which the plaintiffs may obtain in this action ineffectual, and will greatly embarrasss and prejudice the plaintiffs m the enforcement of their rights in this action, and be in violation of the same..

It will be observed that the complaint fails to allege that the payment over of the money by the sheriff upon the executions to the judgment-creditors, will render the action ineffectual, and embarrass and prejudice the plaintiffs; and that it does not demand a temporary or permanent injunction.

The Code provides that a temporary injunction may be granted “Where it appears from the complaint that the plaintiff demands and is entitled to a judgment against the defendant, restraining the commission or continuance of an act, the commission or continuance of which, during the pendency of the action, wovld produce injury to the plaintiff.” Section 603. A temporary injunction may also be granted “where it appears by affidavit that the defendant during the pendency of the action is doing or procuring or suffering to be done, or threatens or is about to do or procure or suffer 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; * * * and where it appears by affidavit, that the defendant, during the pend-ency of the action threatens or is about to remove or dispose of his property, with the intent to defraud the plaintiff.” Section 604.

It will be observed that where the application for the injunction depends upon the nature of the action and is obtained under the former section of the Code quoted, the complaint must show that the plaintiff is entitled to the injunction during the pendency of the action. The complaint in this case, by omitting allegations tending to show .that the payment over of the money would produce an injury to the plaintiffs and render their judgment ineffectual does not bring it within the requirements of the section, which would sustain the injunction granted upon the nature of the action; and we must, therefore, inquire as to whether a case is made for an injunction under section 604 of the Code. Under this section the provision is that the facts must appear by affidavit.

Some facts do appear by affidavit, but not all. The allegations of the complaint in reference to the plaintiffs obtaining judgment against the defendant, the confession of judgments to various persons, and so on do not appear in the affidavit; they only appear in the allegations of the complaint and we are thus brought to the consideration of the question as to whether the allegations of the complaint can be considered in connection with the affidavit of Mr. Romer. Section 607 of the Code provides that: “The order may be granted where it appears to the court or judge by the affidavit of the plaintiff or any other person that sufficient ground exists therefor.” The provisions of this section are general and apply as well to the provisions of section 603 as to those of section 604.

In the case of Chatterton v. Kreitler (2 Abb. N. C. 453), it was held that an injunction could be granted under section 603 of the Code of Civil Procedure only upon a complaint and an affidavit showing sufficient ground therefor, and not on a verified complaint alone. This is in accord with the former practice under the Code of Procedure.. Where the allegations of the complaint are positive and not on information and belief, and the allegations are; sworn to be true, the complaint will be treated as an affidavit, but where the allegations of the complaint are upon information and belief, the ordinary verification is not sufficient. Bostwick v. Ellton, 25 How., 362; Meeker v. The Mayor, etc., 28 id-, 211.

It follows that the papers upon which the injunction was-granted are not sufficient to sustain the same; and that the order of the special term should be reversed; and the motion to vacate granted, with ten dollars costs and disbursements.

Barker, P. J., Bradley and Dwight, JJ., concur.  