
    John J. McDonald, Resp’t, v. William H. Bayne et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 31, 1890.)
    
    Injunction—To restrain sale op goods.
    A. firm, of commission merchants on being required to return all unsold goods in their possession belonging to plaintiffs assignor, apparently did so, and rendered an account of sales made, some of which were not accepted, as they were much below the market price. The firm afterwards made a general assignment, and plaintiff discovered the goods claimed to have been sold in the assignee’s possession, the firm having taken them to their own account. The assignee refused to deliver or pay for them on demand, and plaintiff brought this action for an accounting, alleging that some of the goods had been sold and the proceeds liable to be distributed among the creditors of the firm. Held, that the action was properly brought; that as some of the goods had been sold replevin was not the proper remedy, and that an injunction pendente lite was properly granted.
    Appeal from an order continuing pendente lite the injunction order granted restraining the defendants Messrs. Bayne and Mrs. Campbell, as copartners of the firm of Ross, Campbell & Co., and William H. Taylor, as their assignee, from selling or disposing of certain goods which were consigned by Joseph P. Murphy, the assignor of the plaintiff, to Ross, Campbell & Co. as his factors and agents, for sale for his account; and restraining defendants from paying away the proceeds derived from any sales of these goods. The complaint alleges a conversion by appellant on April 24, 1890, of goods belonging to plaintiff. It further alleges the complete insolvency of Ross, Campbell & Co., who are joined as co-defendants with appellant; and that since April 24th defendants, or some one of them, have wrongfully sold, disposed of or removed some of the goods, and threaten to do the same with the remainder, and use the proceeds for distribution among the creditors of Ross, Campbell & Co., or as a fund with'which to make a composition with them; that “ if allowed to do so it would cause irreparable damage and injury ” to plaintiff and to Murphy’s creditors, and that the value of the goods is about $7,000. The complaint demands judgment enjoining such sale, disposition and removal, and enjoining the paying out of the proceeds of sales already made; adjudging the goods and proceeds of goods sold to belong to plaintiff as assignee of Murphy, and for a receiver and accounting and for general relief.
    
      M B. Whitney, for app’lt; John Notman, for resp’t.
   Van Brunt, P. J.

The plaintiff is the assignee of one MurRoss, Campbell &.Oo. Murphy had consigned.goods to the firm of Ross, Campbell & Co. prior to their assignment, which occurred on the 27th of March, 1890. In January, 1890, Ross, Campbell & Co. were directed by Murphy to turn over all unsold goods of his in their possession which they represented that they did. They then rendered an account of sales setting forth that certain goods had been sold for his account and that they had obtained certain prices for the same; but as those prices were much below the market value of the goods, the plaintiff, as assignee of Murphy, gave notice on the 4th of March, 1890, to Ross, Campbell & Co. that those, sales would not be accepted. Subsequently Ross, Campbell & Co. made an assignment to the defendant Taylor and on the 24th of April, 1890, the plaintiff on visiting the store previously occupied by Ross, Campbell & Co., discovered that the goods in question had not been sold, but that they had been taken to their account by Ross, Campbell & Co., and charged to themselves and that they had falsely represented that they had sold them for the prices stated. Immediately upon making this discovery Murphy demanded delivery on the part of the plaintiff of the goods and their proceeds. The defendant Taylor refused and still refuses to deliver or pay over the same. And it further appearing that the defendants had sold or were about to sell and dispose of the same and distribute the proceeds among the creditors of Ross, Campbell & Co., application was made for this injunction.

The nature of the answer to this application is in the shape of a demurrer to the form of the bill. It is urged that trover or replevin would lie, and that being the case, relief by injunction cannot be sought. This would undoubtedly be true were it not for the allegation contained in the complaint that some of the goods had been sold and the proceeds were liable to be distributed among the creditors of Ross, Campbell & Co. Replevin could not reach these proceeds. They are clearly the property of the plaintiff, which he has a right to reach and to claim in the hands of the assignee of Ross, Campbell & Co., and which he has a right to prevent being distributed amongst the creditors of that firm. If none of these goods had been sold, replevin would undoubtedly have been a complete remedy at law. But as the plaintiff's demand cannot be split up and he have replevin as to one part, and a proceeding in equity to reach the proceeds of the other part which had been sold, he has a right to resort to that remedy which will afford him complete relief. The argument submitted upon the part of the appellant seems to be addressed almost exclusively to the point that replevin would afford the plaintiff relief. This, however, we have seen is dot well founded. Neither is the suggestion that there is no claim in the complaint that the defendant, Taylor, is not able to answer in trover. These goods belonged to the plaintiff. They have been wrongfully disposed of by the defendant; and so long as the plaintiff can trace the proceeds in the hands of the assignee he has a right to recover the same in order that the judgment requiring the defendant to pay over these proceeds to the plaintiff, in case he is successful, shall be effectual.

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

Bartlett, J., concurs.  