
    Clara I. Wood and Ernest D. Barrett, Respondents, v. Edgar H. Cook, Appellant.
    First Department,
    May 21, 1909.
    Injunction pendente lite—failure to state cause of action authorizing injunction— contract to contribute stock to voting trustee construed.
    An injunction cannot be granted under section 603 of the Code of Civil Pro- . eedure providing for an injunction where it appears from the complaint that the plaintiff is entitled to a judgment restraining the commission or continuance of an act. which will produce injury pending6the action, if the complaint does not state a cause of action entitling the plaintiff to an injunction.
    Where the complaint is defective, the court on a motion to continue the injunction cannot grant the same with leave to the plaintiff to serve an amended complaint nuno pro- tuno, where no proper complaint is presented at the argument.
    Where three stockholders enter into a. written agreement providing that they shall deposit with and transfer stock to the amount of §21,000 to voting, trustees, it does not entitle one of the parties to compel another to deposit stock of that value, hut on the contrary each of the parties must deposit one-third of the amount.
    Appeal by the defendant, Edgar H. Cook, from an-order of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of Yew York on the 10th day of April, 1909.
    
      George F. Hurd, for the appellant.
    
      Oliver C. Carpenter, for the respondents.
   Ingraham, J.:

This is an appeal fróm an order continuing an injunction restraining the defendant from voting 210 shares of the stock of the Flusliovalve Company until the legal ownership of said stock isi vested in the voting trustees in accordance with an agreement between the plaintiffs and the defendant, a copy of which is annexed to the complaint, and from disposing of -said stock until the record ownership' thereof shall be vested in said voting trustees. IIpop the complaint in this action and an affidavit of one of the plaintiffs:, a temporary injunction was granted with an order to show cause why the same should not be continued during the pendency of the action. Upon the return of this order to show cause the objection was taken that the complaint did not state a cause of action which justified the granting of an injunction. This objection seems to have been conceded, but notwithstanding that fact, the court continued the injunction and gave the plaintiffs leave within five days from the entry of the order to serve an amended complaint “ nunc pro tunc,” and that in the event of the neglect or failure to serve such amended complaint, the motion to continue the injunction would be denied. Ho amended complaint was presented to the court at the time the motion was argued ; we have, therefore, an injunction in the action based upon a complaint which is eoncededly defective. This injunctiour was granted under section 603 of the Code of Civil Procedure which provides that 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, would produce injury to the plaintiff, an injunction order may be granted to restrain it.” Here, it appears that from the complaint presented to the court, and which was the only complaint in the action when the temporary injunction was granted,, or the motion to continue it heard and decided, it did not appear that the plaintiffs were entitled to a judgment against the defendant restraining the commission of this act, and the plaintiffs were not, therefore, entitled to the injunction asked for. It is no answer to say that the plaintiffs can make a good complaint which would show that they were entitled to such a judgment. The complaint then before the court did not entitle the plaintiffs to such a judgment and they were not, therefore, entitled to the order appealed from. This complaint was defective in several respects. It does not allege that the plaintiffs have carried out the agreement on their part, or that they have ever offered to or are able to carry it out. There is no reason given for the specific performance of this contract, rather than for an action for damages for its breach.

Hor do I think the contract, a copy of which is annexed to the complaint, can be specifically enforced. This agreement, which is signed by the parties to this action, provides that “ The stockholders shall deposit with the voting trustees certificate or certificates to the amount of $21,000 (Twenty-one thousand par value) stock of the Flushovalve Company now or which may be held by the said stockholders, or any of them, together with sufficient transfers of such stock to the voting trustees.” The complaint alleges that by this agreement each of said stockholders was bound to deposit $21,000 par value of the stock, but the agreement does not so provide. Twenty-one thousand dollars par yalue of the stock was to be deposited, not $63,000, the par value of the stock, and that was stock held by the said stockholders, or some of them. There is, therefore, no provision that I can find that the defendant should deposit his stock to the par value of $21,000 any more than the plaintiffs should deposit their stock. The utmost that could be said was that this $21,000 par value was to be divided among the three parties to the instrument when" each would be required to deposit $7,000 par value of the stock. By the affidavit upon which the injunction was granted it appears that this company had a capital stock of $125,000 of which the defendant received $25,000 and $25,000 was to go to each of the plaintiffs. There was $40,000 par value of the stock to be sold at forty cents.on the dollar and the proceeds were to be paid into the treasury of the company, and $10,000 of the stock was to be reserved as treasury stock. Considering the agreement and the allegations of the complaint, we do not think that a case was presented which justified the court in requiring this agreement tó be specifically performed, and that the plaintiffs were not entitled to an injunction during the pendency of the action.

The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the motion to continue the injunction denied, with ten dollars costs.

McLaughlin, Laughlin, Clarke and Scott, JJ., concurred.

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