
    Catherine L. Sickels v. Wm. H. Combs.
    
    (Supreme Court
    Kings Special Term,
    June, 1894.)
    Where a constable has seized goods belonging to another than the judgment debtor, an action lies instanter to restrain his proceedings, particularly where the levy is excessive and the officer is not financially responsible.
    An injunction in such a case pendente lite is proper.
    
      Action to restrain the defendant from proceeding under a levy upon plaintiff’s goods made under an execution against another person.
    
      Sidney V. Lowell, for plaintiff.
    
      JRichcurd Mtwvim,, for defendant.
    
      
       Received too late for insertion in proper place.—[Reporter.
    
   Gtaynob, J.

The plaintiff makes out a case for relief by injunction. The defendant, a constable, has an execution against another person for $166.42 on a judgment in a Justice’s Court, and under it has seized the chattels of the plaintiff, consisting of a retail stock in trade and a horse and wagon used in it, all of the value of $4,000, as the plaintiff alleges, and of the value of $3,000, as the defendant says in his notice of sale. He has also taken possession of the plaintiff’s store, in which she carries on the business, and of the books and papers of the business, and has locked up the store by means of á new lock which he has put on. He has thus completely interrupted the business.

The plaintiff shows that the defendant is financially irresponsible for his acts of abuse of process and oppression, and that, by reason of such acts if they be allowed to continue, she will suffer injury to her business and credit which she will not be able to recover of him, and for which she could not in any event recover adequate damages in an action at law.

It seems clear that the damages that must result from such an interruption of the plaintiff’s business would be difficult, if not impossible, of accurate estimation in an action at law. It is not enough that there be a remedy at law to prevent a couij of equity from intervening, but there must be a reasonably clear and adequate remedy. It should be on the whole as practical and efficient as the remedy in equity; otherwise the latter will be applied. Boyce v. Grundy, 3 Pet. 210.

I see no reason why the impossibility or the extreme uncertainty of getting adequate damages in an action for trespass should not sustain this action.

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Though no case exactly in point in this state is' cited, there are very similar cases involving the same principle. Turner v. Smith, 1 Abb. Pr. (N. S.) 304 ; Tiernan v. Wilson, 6 Johns. Ch. 411.

The chancellor gave relief in the latter case by setting aside the sale of real estate under execution on the ground that the conduct of the officer in selling more than was necessary was fraudulent in law. The excessive levy in this ease and the exclusion of the plaintiff from her store is a criminal offense and fraudulent in law, and, it seems to me, also in fact. Courts of equity grant relief against the fraudulent use of bona fide judgments. Tomkins v. Tomkins, 11 N. J. Eq. 515. In other jurisdictions injunctions have been granted as prayed for in this action and on exactly the same grounds, and text writers point the case out as one for such relief. McCreery v. Sutherland, 23 Md. 471 ; Watson v. Sutherland, 5 Wall. 74 ; High Inj. § 119 ; Lawson Rights, Rem. & Pr. § 3702.

It may need to be specially observed that the plaintiff has not an adequate remedy by an action of replevin, for the defendant could regain possession of the goods by giving the undertaking prescribed for that purpose. Let the injunction be made permanent.

Ordered accordingly.  