
    General Accident, Fire and Life Assurance Company, Limited, Plaintiff, v. John A. Kelly, Defendant.
    (Supreme Court, New York Special Term,
    January, 1916.)
    Motions and orders — when motion for continuance of injunction denied "— attachment.
    Where a motion for the continuance of an injunction restraining defendant from procuring any warrant of attachment against the property of plaintiff is based on the terms of a written agreement between the parties whereby defendant is obligated to refrain from taking such action except under certain nonexisting circumstances, and it appears that all of the three parties to the agreement had seémingly disregarded it in one way or another, the motion will be denied on the ground that plaintiff had failed to establish with reasonable certainty the facts upon which it relies.
    Motion to continue an injunction.
    Beekman, Menken & Griscom (S. S. Menken, or counsel), for plaintiff.
    Cardozo & Nathan (Michael H. Cardozo, Jr., of counsel), for defendant.
   Ford, J.

Plaintiff moves for the continuance of an injunction restraining the defendant ‘ ‘ from procuring any warrant of attachment against the property of the plaintiff.” The motion is based on the terms .of a written agreement between the parties whereby the defendant obligates himself to refrain from taking sneh action except under certain non-existent circumstances. The complaint prays that the injunction be made permanent. Aside from the highly doubtful propriety of granting upon affidavits the full relief asked for by way of final judgment, it is also doubtful whether the defendant is entitled in any event to the injunction because of its breach of the agreement whose terms are invoked as the basis of the plaintiff’s cause of action. It appears to me that no one of the three parties to that agreement has observed its terms hut on the contrary all have seemingly disregarded its provisions in one way or another. Plaintiff seeks to deprive this ostensible creditor of a substantial right conferred by statute upon him in common with all other creditors of the plaintiff. Whether or not this discrimination against him would in any event he warranted in law, the very least that the court should require before ordering it is that the plaintiff establish the facts .upon which he relies with reasonable certainty. This it has failed to do and the motion will be denied.

Motion denied.  