55 F. 356 (2nd Cir. 1893), Hower v. Weiss Malting & Elevator Co.

Citation:55 F. 356
Case Date:April 18, 1893
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 356

55 F. 356 (2nd Cir. 1893)




United States Court of Appeals, Second Circuit.

April 18, 1893

Emanuel J. Myers, for appellant Weiss Malting & Elevator Co.

Fisher A. Baker, for appellant First Nat. Bank.

W. C. De Witt, for appellee.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit nd SHIPMAN, Circuit Judges.

LACOMBE, Circuit Judge.

This action was brought in the supreme court of the state of New York, and was removed from that court to the United States circuit court for the eastern district of New York. Prior to the removal, the state court had granted an injunction restraining the defendants from transferring, disposing of, or in any wise interfering with, certain certificates of stock, representing 8,102 shares of the Fred Hower Brewing Company, during the pendency of the action. After the removal the defendants moved in the circuit court to dissolve the injunction. The circuit court, held by Judge Benedict, after hearing the parties, made an order denying the motion to dissolve, and continuing the injunction in force. The defendants have appealed from this order.

Page 357

It is insisted for the appellants that the injunction should not have been granted, because the case presented by the pleadings is not one of equitable cognizance, but one in which the plaintiff has an adequate and complete remedy at law. Succinctly stated, the facts shown by the bill of complaint are these: On or about September 23, 1891, the defendant the elevator company had acquired 2,503 shares of the stock of the Fred Hower Brewing Company, pursuant to an agreement between the plaintiff and the elevator company that the plaintiff should buy the stock for the sum of $25,033, payable in five years thereafter, in equal semi-annual installments, and that, as a security for the payment, the elevator company should hold in pledge these shares, together with 5,600 other shares of similar stock owned by the plaintiff. Shortly afterwards the elevator company delivered the stock to the plaintiff, and these shares, together with the other 5,600 shares, were left with one Meyers, acting for both parties, 'upon the express understanding and agreement between the plaintiff and the elevator company that the said shares of stock should not be given or delivered to the elevator company until the agreement aforesaid had been reduced to writing, and executed by the elevator company. ' Pending the execution of the written contract, the plaintiff, at the solicitation of the elevator company, without any consideration therefor, and solely for its accommodation, and upon its promise that it would carry and renew the same for the...

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