MILLS NOVELTY CO. v. SUNDERMAN, 266 N.Y. 32 (1934)

193 N.E. 541

MILLS NOVELTY COMPANY, Respondent, v. THEODORE A. SUNDERMAN, Individually, and as Acting Property Clerk of the Police Department of the City of New York, et al., Appellants.

Court of Appeals of the State of New York.Argued November 19, 1934
Decided December 4, 1934

Appeal from the Supreme Court, Appellate Division, First Department.

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Paul Windels, Corporation Counsel (Alvin McKinley Sylvester
and Paxton Blair of counsel), for appellants.

Stuart N. Updike for respondent.

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CROUCH, J.

The action was brought to enjoin the defendants “from in any wise preventing or interfering with the removal, shipping or transporting from this state by plaintiff” of certain property described in the complaint as “coin-operated automatic merchandise vending machines.” The essential allegations of the complaint are that plaintiff on and prior to May 3, 1934, was and now is the owner, lawfully entitled to the possession of the machines; that they were stored in a warehouse in New York city; that by various acts, the police between May 3 and May 9, 1934, prevented delivery thereof to plaintiff; that on May 9 and May 10, 1934, the machines, valued in excess of $19,000, were seized by the police; that the defendants have refused and continue to refuse to deliver them to plaintiff; that the seizure was legally unwarranted, and that plaintiff has no adequate remedy at law.

An injunction pendente lite was granted at Special Term and sustained by the Appellate Division, restraining the defendants as prayed for in the complaint. The case is here upon certified questions.

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We think the complaint is insufficient to state a cause of action for an injunction. No facts are pleaded tending to show an irreparable injury, actual or threatened; or that plaintiff is without an adequate remedy at law. On the contrary, the allegations disclose merely a dispute about a possessory right in specific chattels, which could be readily and adequately settled by an action in replevin or for a conversion. (Cf. Young v Sunderman, 263 N.Y. 623.)

A court of equity, even where property interests are incidentally affected, will not ordinarily interfere with criminal processes, unless there would be irreparable injury and the sole question involved is one of law. (Delaney v. Flood, 183 N.Y. 323.) Neither condition is present here. If the order appealed from were to stand, there would be nothing left to try. (Yome v. Gorman, 242 N.Y. 395, 401.) Instead of preserving the status quo, the order definitively destroys it.

The order appealed from should be reversed, with costs, and the motion should be denied, with ten dollars costs of motion. Question No. 1 should be answered in the negative; question No. 2 in the affirmative; other questions unanswered as unnecessary to a decision.

POUND, Ch. J., CRANE, LEHMAN, O’BRIEN, HUBBS and LOUGHRAN, JJ., concur.

Ordered accordingly.

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