
    William Comyns App’lt, v. William H. Riker et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 20, 1892.)
    
    Injunction—Pendente lite.
    In ah action to compel the application to plaintiff’s judgment of certain notes received by the judgment debtor on a sale of property and which it is claimed that he has fraudulently transferred, an injunction to restrain the negotiation and disposal of the notes pending the action should not he granted where the facts presented do not necessarily tend to the conclusion of the- fraudulent intent of the debtor and his transferee and there is no proof that the transferee is insolvent.
    Appeal from an order denying a motion for an injunction restraining the defendants from negotiating or in any way disposing of certain promissory notes which the plaintiff, a judgment creditor of defendant William H. Riker, seeks to have applied towards the payment of his judgment.
    It is alleged that William H. Riker, the judgment debtor, sold . his stock of goods to a firm of which his father was a member, taking notes therefor, which notes he afterwards transferred to his father without consideration. It appeared that some years prior thereto his father had transferred his business to him.
    
      J. J. Adams, for app’lt; Thomas J. Farrell (D. McMahon, of counsel), for resp’ts.
   Vak Brunt, P. J.

This action was brought to restrain the defendants, William H. Riker and William B. Riker, from nego- . tiating, transferring and disposing of certain promissory notes, and for other relief. A motion for an injunction pendente lile having been denied, this appeal is taken from the order thereupon entered. It is impossible to enter into a detailed discussion of the facts claimed to be established by the plaintiff, upon which he founds his right to an injunction, without expressing our opinion as to the weight of certain evidence, which, however, may present a different aspect upon the trial, when the affiants are orally examined before the court. For this reason we do not think such discussion' should be entered into, as it might, to some extent, hamper the court below, upon the trial of the issues, in its consideration of such evidence. For the disposition of this motion it is sufficient to say that, in our opinion, no case was made out which would justify the court in granting the extraordinary relief sought to be obtained. There was no proof or allegation that the defendant William B. Biker, to whom this money would be paid, is insolvent, or in any way unable to respond to any claim which the plaintiff might make against him. And, further, relief of this extraordinary character should not be>granted simply because our suspicions might be excited as to the regularity of any given transaction. The facts presented must necessarily tend to the conclusion of the fraudulent intent of the parties against whom relief is sought. And, in using this language in respect to suspicion, we do not intend to characterize in any way the effect which the proof submitted had upon our minds, or to intimate that the transactions referred to seem to us to be suspicious or otherwise. As already stated, we desire to leave the question of the effect of any evidence which may be offered upon the trial, both upon the part of the plaintiff and the defendants, entirely open for the court below. The order should be affirmed, with ten dollars costs and disbursements.

O’Brien and Lawrence, JJ., concur.  