CHAPTER 111. PREVENTIVE RELIEF. SECTION 3420. Preventive relief, how granted. 3421. Provisional injunctions. 3422. Injunction, when allowed. 3423. Injunction, when not allowed. SEC. 3420. Preventive relief is granted by injunction, Preventive provisional or final. relief, how granted. N. Y. C. C., Sec. 1909. SEC. 3421. Provisional injunctions are regulated by Provisional the CODE OF CIVIL PROCEDURE. N. Y. C. C., Sec. 1910. injunctions. when SEC. 3122. Except where otherwise provided by this Injunction, Title, a final injunction may be granted to prevent the breach of an obligation existing in favor of the appli cant 1. Where pecuniary compensation would not afford adequate relief. 2. Where it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief. 3. Where the restraint is necessary to prevent a multiplicity of judicial proceedings; or, 4. Where the obligation arises from a trust. N. Y. C. C., Sec. 1911. SEC. 3423. An injunction cannot be granted allowed. Injunction, when not 1. To stay a judicial proceeding pending at the com- allowed. mencement of the action in which the injunction is demanded; unless such restraint is necessary to prevent a multiplicity of such proceedings. 2. To stay proceedings in a Court of the United States. 3. To stay proceedings, in another State, upon a judg ment of a Court of that State. 4. To prevent the execution of a public statute, by officers of the law, for the public benefit. 5. To prevent the breach of a contract, the performance of which would not be specifically enforced. 6. To prevent an injury to the person, character or personal relations of the applicant, not amounting to a nuisance; except that in an action for divorce, an injunetion may be granted to prevent interference with a wife or child. 7. To prevent the exercise of a public or private office, in a lawful manner, by the person in possession. 8. To prevent a legislative act by a municipal corporation; or, 9. Where relief, equally efficacious, can be obtained by any other usual mode of proceeding, except in case of breach of trust. N. Y. C. C., Sec. 1912. PART II. SPECIAL RELATIONS OF DEBTOR AND CREDITOR. TITLE I. GENERAL PRINCIPLES. II. FRAUDULENT INSTRUMENTS AND TRANSFERS. TITLE I. GENERAL PRINCIPLES. SECTION 3429. Who is a debtor. 3430. Who is a creditor. 3431. Contracts of debtor are valid. 3432. Payments in preference. 3433. Relative rights of different creditors. SEC. 3429. A debtor, within the meaning of this Title, Who is a is one who, by reason of an existing obligation, is or may become liable to pay money to another, whether such liability is certain or contingent. N. Y. C. C., Sec. 1913. debtor. creditor. SEC. 3430. A creditor, within the meaning of this Who is a Title, is one in whose favor an obligation exists, by reason of which he is, or may become, entitled to the payment of money. N. Y. C. C., Sec. 1914. SEC. 3431. In the absence of fraud, every contract of a debtor is valid against all his creditors, existing or subsequent, who have not acquired a lien on the property affected by such contract. N. Y. C. C., Sec. 1915. Contracts of valid. debtor are preference. SEC. 3432. A debtor may pay one creditor in prefer- Payments ence to another, or may give to one creditor security for the payment of his demand in preference to another. N. Y. C. C., Sec. 1916. Relative rights of different creditors. SEC. 3433. Where a creditor is entitled to resort to each of several funds for the satisfaction of his claim, and another person has an interest in, or is entitled as a creditor to resort to, some but not all of them, the latter may require the former to seek satisfaction from those funds to which the latter has no such claim, so far as it can be done without impairing the right of the former to complete satisfaction, and without doing injustice to third persons. N. Y. C. C., Sec. 1917. Transfers, etc., with intent to defraud creditors. TITLE II. FRAUDULENT INSTRUMENTS AND TRANSFERS. SECTION 3439. Tranfers, etc., with intent to defraud creditors. 3441. Rights of purchasers and mortgagees. 3442. Creditor's right must be judicially ascertained. SEC. 3439. Every transfer of property or charge thereon made, every obligation incurred, and every judicial proceeding taken, with intent to delay or defraud any creditor or other person of his demands, is void against all creditors of the debtor, and their successors in interest, and against any persons upon whom the estate of the debtor devolves in trust for the benefit of others than the debtor. N. Y. C. C., Sec. 1918; "Fraudulent Conveyances and NOTE." Creditors" ought to be named, also, in Sec. 1227, with purchasers" and "encumbrancers," as that section refers to "Fraudulent Transfers of Real Property." That section (1227) is an expression of Sec. 1 of the Act cited (Fraudulent Conveyances and Contracts). The term "creditors" is necessary to make that Title complete in itself. It would be an instance of duplicating a single word or line of the law to give completeness to an important subject, without disturbing the phraseology of one of the oldest and most thoroughly adjudicated sections. A section (1227 a) applying this section to transfers of real property, would, perhaps, accomplish the object best. Logically, the subjects of this section belong to the Titles on Transfers of Real Property, Sales of Personal Property, and Obligations. transters fraudulent. SEC. 3440. Every transfer of personal property, other Certain than a thing in action, or a ship or cargo at sea, or in a presumed foreign port, and every lien thereon, other then a contract of bottomry or respondentia, is [conclusively] presumed, if made by a person having at the time the possession or control of the property, and not accompa nied by an immediate delivery, and followed by an actual and continued change of possession of the things transferred, to be fraudulent and therefore void, against those who are his creditors while he remains in possession, and the successors in interest of such creditors, and against any persons on whom his estate devolves in trust for the benefit of others than himself, and against purchasers or encumbrancers in good faith subsequent to the transfer. N. Y. C. C., Sec. 1919. NOTE. The word "conclusively," in brackets, is inserted in the text of the New York Civil Code to conform with the requirement of our statute of Frauds, Sec. 15 (Hit. Dig., Sec. 3159). The following section from the New York Civil Code is retained as a note, and may be made a part of the text, if "conclusively" should be stricken from the above section: SEC. 1920. The presumption declared by the last section may be repelled by showing that the transfer was made in good faith and without intent to defraud. See note to preceding section; also, see Sec. note, in Title on Personal Mortgage. with SEC. 3441. The provisions of this Title do not affect the rights of a purchaser or encumbrancer, in good faith and for value. N. Y. C. C., Sec. 1921. SEC. 3442. A creditor can avoid the act or obligation of his debtor for fraud, only where the fraud obstructs the enforcement, by legal process, of his right to take the property affected by the transfer or obligation. N. Y. C. C., Sec. 1922. Rights of and mort purchasers gagees. Creditor's right must ascertained. fraud, how SEC. 3443. In all cases arising under this Title, or un- Question of der Sec. 1227 of this Code, the question of fraudulent determined. intent is one of fact, and not of law; nor can any transfer or charge be adjudged fraudulent solely on the ground that it was not made for a valuable consideration. N. Y. C. C., Sec. 1923. |