Opinion
December Term, 1897.
Julius H. Seymour, for the appellant.
John C. Judge, for the respondent.
The action was brought to recover the proceeds of a sale by defendant assignee of certain stocks alleged to have been the property of the plaintiff. The assignment was made August 31, 1897, and gave preferences to a considerable amount; and if the assignee were allowed to apply the assets in his hands upon these preferred debts, there would be no assets remaining to meet plaintiff's judgment, if he recovered one. The claim made by plaintiff was that, at the time of the assignment, the assignor had in his possession the stocks in question belonging to plaintiff; that these stocks were held subject to a lien in favor of the assignor for the purchase price thereof, less $5,000 paid thereon by the plaintiff; that after the assignment the assignee sold the stocks, and realized upon such sale, over and above the amount remaining unpaid by the plaintiff for the purchase price of the stocks, the amount in question, $4,212.50, which moneys came into his hands, and were the proceeds of the sale of plaintiff's stock and belonged to the plaintiff; and that the plaintiff was entitled to recover the same without reference to the other assets of the assigned estate or the claims of creditors payable therefrom. The plaintiff made an application to the court to compel the assignee to pay this money over to him. The assignee did not controvert the facts made to appear by the plaintiff's papers. The court apparently doubted its power to make the order applied for, but did grant the injunction upon the application of the plaintiff. The usual undertaking was given. The case came directly within section 604 of the Code, as it appeared that the defendant was about to do an act, viz., pay to the preferred creditors the money realized from the sale of plaintiff's stock, tending to render the judgment demanded ineffectual. The injunction was very properly granted to restrain the disposition of these moneys until it could be determined in this action whether the plaintiff was entitled to recover these moneys as the proceeds of the sale of stocks belonging to him and to which the preferred and other creditors had no right whatever.
The order appealed from should be affirmed, with costs.
VAN BRUNT, P.J., PATTERSON, O'BRIEN and INGRAHAM, JJ., concurred.
Order affirmed, with costs.