Opinion
April 5, 1928.
Appeal from Supreme Court of Essex County.
Horatio W. Thomas, for the appellant.
James J. Barry [ B. Loyal O'Connell of counsel], for the respondent.
The plaintiff entered into a contract with defendant Nye to furnish material for the construction of a building. The defendant failed to pay therefor and a notice of lien for the material was filed. Subsequently an action was brought to foreclose the lien. The building had been insured by defendant in his own name. The building burned and the remaining lands were valueless. Alleging that the defendant had agreed to insure the property for its benefit, the plaintiff obtained an order bringing in the insurance companies as parties defendant and served a supplemental summons and complaint asking as relief that a lien be impressed for its benefit upon the insurance funds. A temporary injunction was granted restraining the defendant Nye from receiving and the defendant insurance companies from paying the money until the determination of the controversy. This injunction was vacated on motion of defendant Nye on the ground that the defendants brought in by the order had been improperly joined, and because of the laches of plaintiff.
Even if we were to hold that the joinder of additional parties defendant might be attacked collaterally on this motion by the respondent Nye, we are of opinion that the defendant insurance companies were properly brought in. (Civ. Prac. Act, §§ 193, 211, 212; Sherlock v. Manwaren, 208 App. Div. 538.)
It appears that Nye is insolvent and that if the money came into his hands it would immediately be seized by other creditors and any lien plaintiff has will be lost. Under the circumstances, a temporary injunction order would seem a proper remedy to preserve the property in statu quo during the pendency of the suit and until the respective rights of the parties are decided. (Civ. Prac. Act, § 878; Smith v. Taranto, 140 N.Y. Supp. 794; affd., 158 App. Div. 912; Fine v. Rabinbauer, 49 Misc. 437; People v. Long Island Railroad, 113 id. 700; revd. on other grounds, 195 App. Div. 897; Goldstein v. Societa Veneziana, 193 id. 168.)
An order granting or dissolving a temporary injunction in a case of this kind is largely discretionary. ( Paul v. Munger,
47 N.Y. 469.) The grounds recited in the order appealed from indicate that the motion was granted for reasons other than those of discretion. It does not appear that the respondent filed any affidavits in moving to vacate the order. He has failed to show facts indicating laches on the part of plaintiff or that he has been harmed by reason of any delay in applying for the order. On the contrary, the plaintiff seems to have moved promptly after the rights between Nye and the insurance companies were determined by adjustment.
It follows that the order should be reversed on the law and facts, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
VAN KIRK, P.J., HINMAN, DAVIS, WHITMYER and HASBROUCK, JJ., concur.
Order reversed on the law and facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.