Brooks v. Stone
New York Supreme Court
Appeal from, an order vacating an injunction. The plaintiff in this action had obtained an injunction, under section 219 of the Code, restraining a sale of the real property of his debtor, one of the defendants, under judgment and execution in favor of another defendant.
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Appeal from, an order vacating an injunction. The plaintiff in this action had obtained an injunction, under section 219 of the Code, restraining a sale of the real property of his debtor, one of the defendants, under judgment and execution in favor of another defendant. The grounds on which the injunction was obtained were, that the judgment was confessed without consideration, and in fraud of the rights of creditors, and that the plaintiff had thereafter commenced an action against the debtor, and procured an attachment, upon which he had attached the real property which was now advertised…
1Opinion of the Court
By the Court *—Marvin, J.
The rule, prior to the Code, was well settled that a creditor could not restrain the debtor from disposing of his property until he had exhausted his remedy at law by judgment and execution. It was expressly held that an attaching creditor, under the absent-debtor act, could not move to set aside a judgment alleged to have been fraudulently confessed until trustees were appointed. (Fort a. Fort, 9 Wend., 442.) In Wintringham a. Wintringham (20 Johns., 296), the court refused to set aside a judgment confessed, or to stay execution, on the ground of fraud, at the…
2Cases cited1 opinion
- Wintringham v. WintringhamNew York Supreme Court · 1822