BENGUIAT v. MANUFACTURERS TRUST CO. OF N.Y., 114 N.J. Eq. 17 (1933)

168 A. 316

MORDECAI BENGUIAT, complainant-respondent, v. MANUFACTURERS TRUST COMPANY OF NEW YORK, defendant-appellant, and HAROLD V. REILLY, sheriff of Bergen county, defendant.

Court of Errors and Appeals.Submitted May term, 1933.
Decided September 27th, 1933.

Where the necessity of continuing a restraint pendente lite
to preserve the subject-matter of the litigation is conceded, and where the records offered by the defendant in support of his contention that the questions raised in the present litigation are res adjudicata leaves the court still in doubt that the issue has been concluded in a previous litigation, the interim
restraint will be continued until final hearing.

On appeal from an order of the court of chancery advised by Vice-Chancellor Buchanan, who filed the following opinion:

“The bill is filed to establish a trust in favor of complainant with respect to certain real estate at Edgewater, New Jersey, and to restrain the consummation of a sale thereof to defendant in the course of a foreclosure suit pending in this court. Order to show cause was made, with interim restraint, why the consummation of the sale should not be restrained pendente lite.

“Obviously such restraint pendente lite is necessary to preserve the subject-matter of the litigation and this is conceded. It is contended, however, by defendant that the questions raised in the present litigation are clearly res adjudicata

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and that hence complainant is not entitled to litigate them again nor to have the consummation of the sale restrained for that sole purpose.

“The records offered on this issue are voluminous. Consideration thereof leaves the court still in doubt that the issue raised by the present bill has been concluded in the previous litigation; and it necessarily results that th interim restraint will be continued until final hearing.”

Mr. Dougal Herr (Mr. William A. Kaufmann, of counsel), for the appellant.

Mr. Sidney Goldmann (Mr. William Reich, of counsel), for the respondent.

PER CURIAM.

The decree appealed from will be affirmed, for the reasons expressed in the opinion delivered by Vice-Chancellor Buchanan in the court of chancery.

For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, CASE, BODINE, DONGES, PERSKIE, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, DILL, JJ. 13.

For reversal — HEHER, J. 1.