Conover v. Hoffman.

is an absolute conveyance and for valuable consideration, containing no suggestion of any cloud or embarrassment thereon; and by a succession of these, it has come into the hands of the plaintiffs.

The answer of the defendant admits the title to have been in James R. Smith at his death. The Register's searches hereto annexed show that there were no incumbrances on the premises at the commencement of this action.

My opinion therefore is, that the plaintiffs have a valid title thereto.

All which, &c.

January 12, 1857,

"M. HOFFMAN, Jun."

Upon the coming in of this Report, the action was heard at Special Term in February, 1857. Mr. J. DUER, before whom it was heard, gave judgment as follows:

"This cause came on to be heard upon the complaint, answer, order of reference and opinion of the Referee appointed in the action; and after hearing Mr. Edwards Pierrepont, of counsel for the plaintiffs, and Mr. Edward Hoffman, of counsel for the defendant, and due deliberation being had by the Court:

It is ordered and adjudged, that the defendant perform specifically her contract set forth in the complaint and admitted by the answer. That she receive and accept the deed tendered by the plaintiffs of the premises in question; and that she pay unto the plaintiffs the sum of twelve thousand dollars, with interest from the first day of April, 1856. That she execute and deliver to the plaintiffs her bond, secured by mortgage upon the said premises, payable as in the said contract specified, to wit: one thousand dollars on the first day of April, 1857; one thousand dollars on the first day of April, 1858; and twelve hundred and fifty dollars on the first day of April, 1859; with interest on said several sums until paid, to be computed from the first day of April, 1856, and payable half-yearly; said mortgage to be a subsequent lien to a mortgage for ten thousand dollars, to be executed by the said defendant.

And it is further ordered and adjudged, that the defendant pay the costs of this action, taxed with allowance at $326 18, unto the plaintiffs."

Fredericks v. Mayer.

From this judgment the defendant appealed to the General Term.

E. Hoffman, for the defendant.

Edwards Pierrepont, for the plaintiff.

BY THE COURT. We are entirely satisfied with the Report of the Referee in this case, and with the reasons that he has so fully and ably given in support of his decision. We observe, in addition, that, so far from there being any incompatibility between a power to sell and a power to divide, the exercise of the former may, frequently, be necessary to that of the latter, that is; a sale of portions of the estate may be necessary to enable the trustees of the power to make a just and equal division of the whole, and hence, when a power to sell is not expressly given, its existence, as incidental to that of a division, may reasonably be implied,

CHARLES D. FREDERICKS and others v. CONSTANT MAYER and another.

Whether an injunction may rightfully be issued to restrain a defendant from working, pendente lite, for any other person than the plaintiff, in violation of a contract with the plaintiff, is, upon the authorities, a doubtful question, but the precedents in this State seem to be against the exercise of the power. Admitting, however, that the power of granting such an injunction, pendente lite, exists, it is certain that its exercise must, in many cases, be a harsh and oppressive proceeding, since it may deprive the defendant of his only means of gaining a subsistence or of supporting his family during the continuance of a litigation that may last for months or years.

There are certain rules that ought to govern a Court of Equity in the exercise of its summary, and in a degree arbitrary, power of granting injunctions, and these rules forbid the exercise of the power where it will operate oppressively or work an immediate injury, or when the right of the plaintiff is doubtful, or the facts are not clearly ascertained. An injunction should not be issued unless the right is clear, and it will not be awarded in doubtful cases, nor in new ones not coming within established principles.

These views ought to govern the Court even upon a final hearing: Much more

Fredericks v. Mayer.

should they be deemed controlling when the application is for an injunction pendente lite, and the grounds of the application are controverted and the facts are involved in serious doubt.

Held, that the plaintiff, upon the papers before the Court, had failed to establish a case that could warrant the issuing of an injunction in the present stage of the action. Neither the right, nor the facts upon which he relied, were clearly established.

Order denying injunction affirmed with costs.

(Before DUER, BOSWORTH, HOFFMAN and WOODRUFF, J.J.)

Heard, May 9; decided, May 16, 1857.

THIS action comes before the Court, at General Term, on an appeal by the plaintiffs from an order made on the 9th of March, 1857, by Mr. JUSTICE HOFFMAN, dissolving a temporary injunction, and denying a motion for its continuance pendente lite.

The following are the material facts of the case, as collected from the pleadings and the affidavits of the parties.

The bill of complaint was filed to restrain the defendant, Mayer, from painting photographic likenesses, &c., for any person or persons other than the plaintiffs, and to recover damages for his alleged breach of contract with the plaintiffs to work for them.

It alleges that the plaintiffs are partners, carrying on business together as photographists in Paris, under the firm name of Fredericks, Penebert & Le Blanc, and in the city of New York, under the name of Charles D. Fredericks, and that as such copartners they entered into a contract with the defendant, Mayer, on the 2d day of June, 1855, at the city of Paris, whereby they agreed to pay his expenses to New York, and to employ him there for the term of three years, at a salary named, and that he agreed to work as an artist, painting, &c., "for the house of New York," and "not to work for any other house or person during the term of the contract, excepting Fredericks, Penebert & Le Blanc," and that he would proceed to New York, and place himself at the disposition of Mr. Fredericks for the said term of three years.

That the defendant, Mayer, in pursuance of the said contract, came to New York and entered into the service of the plaintiffs, and remained in their service, under the direction of the said Fredericks, until about the first of September, 1856, when he left their service and entered into the service of the defendant, Gurney,

Fredericks v. Mayer.

for whom he is now performing similar work, &c., and that the defendant, Gurney, when Mayer went into his employ, knew of the existence of the contract between the plaintiffs and Mayer.

The defendant, Mayer, by affidavit, admits the making of the contract, but denies that it was performed on the part of the plaintiffs, or that he, in fact, ever entered into their service; on the contrary, he states that on his arrival in New York he found that he had been deceived, that he then found that the plaintiffs had no "house" in this city, and that said firm had no existence here—but that the defendant, Fredericks, had previously entered into partnership with the defendant, Gurney, under the name of Fredericks & Gurney, who were carrying on the business, and that he would not have left Paris but for his reliance upon the representations and his belief that the plaintiffs had an established house in New York,-that being wholly dependent upon his profession for support, and his family and parents dependent upon him, and the plaintiffs not employing, nor offering to employ him, he entered into the employ of the firm of Gurney & Fredericks, and continued to work for them (for upwards of one year) until their partnership was dissolved, about the 1st of August, 1856, and received his salary solely from them.

That after the dissolution of the firm of Gurney & Fredericks, he entered into an agreement with Gurney to work for him, and is satisfied of the ability of Gurney to pay his salary, which it is absolutely necessary that he should receive regularly for the support of himself and his parents, and that he does not feel satisfied of the solvency of the said Fredericks.

The defendant, Gurney, by his affidavit, states that eighteen months prior to the contract with Mayer he entered into partnership with Fredericks, and that the other plaintiffs were not engaged in business with him.

That he advanced to Fredericks, for the use of the firm, five hundred dollars, on Fredericks' representation that that sum was necessary, to be deposited in Paris, as security, to engage artists for the partnership to color photographs, and also advanced the money to pay the artists' expenses to this country, and that Mayer, and other artists came to this country and entered into the employment of the firm of Gurney & Fredericks, and that he supposed the contracts were made with them in the name of

Fredericks v. Mayer.

the firm of Gurney & Fredericks, but the contracts being in French he could not read them, and, in fact, he says he did not see them till shortly before the dissolution of that firm.

That the plaintiffs never had any place of business in New York until after such dissolution; That Fredericks was bound by their agreement of co-partnership to give his undivided atten tion to the business of their firm, and he avers that the contracts in question were drawn wrongfully, and with intent to defraud him, in the name of the plaintiffs; that Mayer was, in fact, always in the employ of Gurney & Fredericks, who paid his expenses to this country, and his salary.

Both Mayer and Gurney also refer to an agreement, or consent, signed by Gurney and by Fredericks, giving Mayer permission to go to Philadelphia (where he worked for the firm of Fredericks, Penebert & Germon), to return whenever they, Gurney & Fredericks, should desire it, and stipulating that “the contract between Mr. Mayer and ourselves will not be affected by this absence." Under this permission Mayer was absent about one month.

The plaintiff, Fredericks, to repel these affidavits, states that the plaintiffs, Fredericks, Penebert & Le Blanc, never had any connection with Gurney, nor were co-partners with him, but that as between him and Penebert and Le Blanc he accounted for one-half of his share of the profits of the business of Gurney & Fredericks; He does not allege that the plaintiffs, in any other manner, had any house or place of business in New York.

He does not deny that the money was advanced, as stated by the defendant, Gurney, and that the artists entered into the employment of the firm of Gurney & Fredericks, and continued in their employment until the dissolution of that firm.

Various other facts of minor importance are stated in the affidavits of the parties, and other affidavits read on the motion, and in many particulars there is direct conflict between the affidavits produced, and particularly upon the question whether Gurney knew, during the continuance of the partnership, and when the artists entered into their employment, in whose names the contracts were drawn; and as against the defendant, Gurney, the plaintiff, Fredericks, insists that he was to produce the artists and allow them to work for Gurney & Fredericks, while they