Opinion
October, 1930.
Order enjoining negotiation of notes reversed upon the law and the facts, with ten dollars costs and disbursements, and motion for temporary injunction denied, with ten dollars costs. Appeal from order denying motion for reargument dismissed, such order not being appealable. The action is for damages for fraud. Rescission is not sought. The plaintiff affirms the contract but by virtue of the alleged fraud demands damages therefor. The transfer of the notes given as part of the consideration is attempted incidentally to be restrained. This does not bring the case within section 877 of the Civil Practice Act, where the right to an injunction depends upon the nature of the action; nor is the case one provided for by subdivision 1 of section 878 of the Civil Practice Act, where the right to an injunction pendente lite depends upon a showing that defendants, during the pendency of the action, are doing or threaten to do an act in violation of plaintiff's rights respecting the subject of the action and tending to render the judgment ineffectual. ( Weber v. Freifeld, 204 App. Div. 413; Goldin v. Tauster, 68 Misc. 459.) Lazansky, P.J., Young, Kapper, Scudder and Tompkins, JJ., concur.