Sherwood v. Fred O. H. Fincke Co.
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendants, Fred O. H. Fincke Company, Inc., and others, from an order of the Supreme Court, made at the Queens Special Term and entered in the office of the clerk of the county of Queens on the 29th day of November, 1920, granting plaintiff’s motion for an order restraining the defendants from commencing or maintaining any foreclosure or other proceedings against the plaintiff under and by virtue of a certain bond'and mortgage, till the determination of the…
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Appeal by the defendants, Fred O. H. Fincke Company, Inc., and others, from an order of the Supreme Court, made at the Queens Special Term and entered in the office of the clerk of the county of Queens on the 29th day of November, 1920, granting plaintiff’s motion for an order restraining the defendants from commencing or maintaining any foreclosure or other proceedings against the plaintiff under and by virtue of a certain bond'and mortgage, till the determination of the action against the defendants wherein the relief asked is that an assignment of said bond and mortgage be set aside and…
1Per curiam
The plaintiff has not rescinded and does not seek to rescind the instrument he claims was procured by fraud. Neither does he restore nor offer to restore the property obtained by him. His action is clearly an action for damages only. (Hedges v. Pioneer Iron Works, 166 App. Div. 208, 209.) The nature of the action, therefore, did not authorize an injunction under section 603 of the Code of Civil Procedure. The only thing which plaintiff’s moving papers allege the defendants are threatening to do tending to make plaintiff’s judgment ineffectual is to foreclose the mortgage upon plaintiff’s…
2Cases cited3 opinions
- American Guild v. . DamonNew York Court of Appeals · 1906
- Rapps v. . GottliebNew York Court of Appeals · 1894
- Hedges v. Pioneer Iron WorksAppellate Division of the Supreme Court of the State of New York · 1915
3Cited by7 opinions
- Fout v. WolfeAppellate Division of the Supreme Court of the State of New York · 1930
- Torre v. ZuzaNew York Supreme Court · 1961
- County Plains Corp. v. Nosband Corp.Appellate Division of the Supreme Court of the State of New York · 1932
- Turf Screen Printers, Inc. v. GrayNew York Supreme Court · 1962
- Mercogliano Lumber Corp. v. Sea Cliff Homes, Inc.New York Supreme Court · 1961
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