The services claimed cover a period of 20 years, and would not, probably, be susceptible of elucidation by items. While the pleading is not to be commended, we think it does state a cause of action, and, in connection with the verified claim and bill of particulars, was sufficiently explicit to inform the defendant of the claim against him. When the motion to dismiss was about to be granted, the plaintiff's counsel asked for leave to amend, if there was any informality in the complaint; but leave was denied. It seems quite clear that the defendant was not misled by the defects now urged; and the court, if it was satisfied the complaint was defective, should have allowed an amendment, imposing such terms as it deemed equitable. National Bank of Deposit v. Rogers, 166 N. Y. 380, 387, 59 N. E. 922. The judgment and order should be reversed, and a new trial ordered, with costs to the appellant to abide event. So ordered. concur. All REIS v. GRAHAM et al. (Supreme Court, Appellate Division, Third Department. November 13, 1907.) 1. INJUNCTION-EXISTENCE OF OTHER REMEDY. A sult to enjoin another action and for an accounting cannot be maintained; the matters set up in the complaint not calling for equitable relief, but being purely defensive, and in substance the same as set up in the answer in the action sought to be enjoined. [Ed. Note. For cases in point, see Cent. Dig. vol. 27, Injunction, § 35.] 2. SAME-CHANGE OF VENUE. Injunction will not lie for the purpose of effecting a change of venue in another action. Motion in the other action for the change is the proper remedy. Appeal fom Special Term, Chemung County. Action by Moses Reis against Andrew J. Graham and others. From an order denying the motion of certain defendants to vacate an injunction, they appeal. Reversed, and motion granted. Argued before SMITH, P. J., and CHESTËR, KELLOGG, COCHRANE, and SEWELL, JJ. Douglass & Kinter (Henry B. Cory, of counsel), for appellants. JOHN M. KELLOGG, J. One Beardsley contracted to make certain alterations and improvements in the theater belonging to one Robinson, as trustee, and Beardsley contracted with the Andrews Company to install for him the opera chairs in said theater, and the defendant Robinson guaranteed the performance of said contract on the part of said Beardsley. About the time for the delivery of the chairs, the Andrews Company insisted that Moses Reis must accept drafts for the amount to become due to it upon the contract, and to bring about a fulfillment of the contract the said Reis accepted the drafts in suit, which were subsequently transferred to one Graham, who brought an action in New York county against said Reis on said acceptances, claiming that he was a holder for value. Reis defended that action, and 140 New York State Reporter claiming that by a subsequent understanding between Beardsley and the Andrews Company the chairs were not installed until four days after the time mentioned in the original contract, that the same was done without his consent, that he was an accommodation acceptor, that the defendant was thereby discharged from liability, and that certain of the chairs did not comply with the contract, and denied that Graham was a holder for value. The chairs were installed and are now in use in the theater. When the New York action was upon the calendar ready for trial, and just before the trial day, this action was brought, with the venue in Chemung county, by Reis against the said Graham, his attorneys in the New York action, and others, alleging substantially the same matters set up in his answer in the New York action, and asking that that action be enjoined and an accounting had between the parties, and a temporary injunction accompanied the summons and complaint in that action restraining the prosecution of the New York action. The Andrews Company and Graham, the plaintiffs in the former action, were nonresidents of the state and were not served. Service was made upon Graham's attorneys, who made the application to vacate the injunction, and who bring this appeal. The complaint in this action, in substance, alleges the same matters that are set up as a defense in the New York action, and, if there are any merits in the matters alleged, they are fully available as a defense in that action. They are not matters calling for equitable relief, but are purely defensive. No fact appears in the affidavits or moving papers indicating the propriety or necessity of bringing the action in Chemung county, or of enjoining the prosecution of the New York action. A change of venue is obtained by motion in the action, rather than by injunction in another action. The order appealed from should be reversed, with costs, and the motion to vacate the injunction granted, with $10 costs. All concur. (55 Misc. Rep. 408.) LEWIS et al. v. RYAN et al. (Supreme Court, Special Term, New York County. July, 1907.) 1. PLEADING-DEMURRER TO REPLY-DEFECTIVE ANSWER. Where an answer in ejectment setting up title in defendants is defective for failing to allege that defendants' predecessor in title was ever seised or possessed of the premises in question, a demurrer to the reply cannot be sustained. [Ed. Note. For cases in point, see Cent. Dig. vol. 39, Pleading, § 543.] 2. EJECTMENT-ANSWER-REPLY. In ejectment, defendants pleaded a judgment in an action brought by joint tenants and the present plaintiffs in bar. Plaintiffs in reply denied all the allegations, identifying the defeated plaintiffs in the former ac tion with plaintiffs in the suit in question. Held not subject to demurrer as failing to raise an issue of fact. 3. SAME. In ejectment, defendants' answer alleged that they were in possession under a deed from a decedent to a third person, and by conveyances from him, and also under the decedent's will, whereby the grantor of such third person became the devisee of the testator. Plaintiffs in reply denied any consideration for the deed, and alleged that the will and the deed from testator were procured by undue influence under a fraudulent conspiracy while testator was mentally incompetent. Held, that the reply was not subject to demurrer for insufficiency. Action by Ella H. Lewis and others against Michael Ryan and others. Demurrers to reply overruled. Edward W. S. Johnston, for demurrants. Henry B. Twombly and Louis H. Hall, opposed. BISCHOFF, J. The action is in ejectment. Separate defenses are interposed to the effect that the defendants are in possession by virtue of a conveyance made by one Michael L. Flynn to John Dollard, who, in turn, conveyed to Mary M. Flynn; and by virtue, also, of the last will and testament of Michael L. Flynn, whereby Mary M. Flynn became the devisee of all the testator's real property. Further, it is alleged, as matter of defense, that a certain action, instituted by Mary Smith, Margaret Smith, and Ellen Smith Brown against these defendants to recover possession of an undivided half of the premises in suit, "as joint tenants or tenants in common with the plaintiffs herein," resulted in judgment for the defendants. The reply, to which, as a whole, the demurrer is interposed, denies that there was consideration. for the deeds of conveyance referred to, and denies the allegation as to the action brought by Mary Smith and others, except to admit the bringing of an action by those parties to recover possession of an undivided one-half interest in the premises described in the complaint, which action terminated in judgment that such parties were not entitled to possession; and it is further alleged that the deed from Flynn to Dollard, as well as the last will and testament of Flynn, were procured by Dollard and by Mary M. Flynn to be executed through fraud and undue influence, and in pursuance of a fraudulent conspiracy to obtain possession of Flynn's property at a time when he was mentally incompetent to make a will or to execute and deliver a conveyance. The demurrers to this reply for insufficiency are certainly not well conceived. Apparently they are interposed upon the theory that the Appellate Division, when affirming the judgment for the defendant in Smith v. Ryan, 116 App. Div. 397, 101 N. Y. Supp. 1011, has determined that no inquiry into the acts of Michael L. Flynn, or into the circumstances surrounding the making of the will or the delivery of the deed, may be had in this action. What was decided in that case was simply that, where the grantor had not been judicially declared to be incompetent, his deed of conveyance could not be attacked upon the ground of incompetency in an ejectment suit. Here the allegation is that there was active fraud, and the rule applied in Smith v. Ryan does not, to this extent of the averments, affect the issues of law before me. Again, if I should assume that the deed and the will could not be attacked for fraud when set up in answer to the plaintiff's suit, as counsel for the defendants would seem to contend, still the reply could not be open to demurrer, because the plaintiffs may properly invoke the rule that a demurrer reaches the first bad pleading, and the answers are obviously defective in substance, for a failure to allege that Michael and 140 New York State Reporter L. Flynn, the assumed source of the defendants' title, was ever seised or possessed of the premises in suit or had shadow of title to them at any time. So far as the reply is directed to the defense of an estoppel by adjudication, it appears that all the allegations of this defense which seek to identify the defeated plaintiffs in the former action with these plaintiffs through some privity of estate are denied, not through an asserted absence of knowledge and information sufficient for a belief with regard to public records, as defendants' counsel suggest, but absolutely. The admissions in the reply are simply that some persons, not suing "as joint tenants or tenants in common with these plaintiffs," brought an ejectment suit against these defendants, touching these premises, and were defeated. Upon this state of facts there was no privity of estate, and the reply distinctly raises an issue of fact as to the former adjudication, even should I adopt the defendants' contention that one joint tenant may, by a futile and informal suit, conclude another who has no notice and is not joined as a party. For the reasons stated, the demurrers are overruled, with costs. (55 Misc. Rep. 529.) FLOYD-JONES v. UNITED ELECTRIC LIGHT CO. (Supreme Court, Special Term, New York County. August, 1907.) INJUNCTION-TEMPORARY INJUNCTION-REMEDY AT LAW. The plant of an electric light company in New York was used merely for storing, transforming, and transmitting an electric current generated at a distance, and supplied over 5,000 customers, lighting streets and public schools, and furnishing light and power to river bridges. It was constructed in the very best manner, and no negligence was charged. Held, that its operation would not be enjoined pendente lite at the suit of a private individual having an adequate remedy at law for any damage caused by its operation. [Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Injunction, §§ 15, 16.] Action by one Floyd-Jones against the United Electric Light Company. Motion for preliminary injunction denied. Frayer, Stotesbury & Gregg, for plaintiff. McCALL, J. The service which the defendant is rendering is of a quasi public character; and in the particular neighborhood, embracing a large territory, for whose benefit this plant is operated, the defendant company is the only institution of its kind from which electric light, heat, and power can be obtained. It supplies over 5,000 customers, and the range of its service takes in the lighting of the streets and schools belonging to the public, and our bridges that span the rivers in this section of the city obtain both light and power therefrom. Factories are dependent on this station for power to operate their machinery, and a great number of apartment houses operate their elevators by power received from the defendant. It is thus made patent that the injury that would be wrought, not only to the defendant, but to the public as well, by the issuance of an order that would cause a cessation in the operation of this plant, would be of an exceedingly grave and serious character; while, on the other hand, if the plaintiff has suffered damage in any of his rights, he has a complete remedy at law, which will afford him ample protection, without working incalculable mischief to the public in general. The plant is one in which no machinery for generating electricity is employed. No steam machinery, engines, or boilers are employed, or used, or are to be found within the building. The station is used merely for storing, transforming, and transmitting the current which is generated in a station located at First avenue and Thirty-Ninth street, miles away from the plant the operation of which is complained of, and the proof before me shows that it is made and constructed on the very highest plane, and no negligence is shown or asserted as to its operation. Some vibration, I presume, must necessarily ensue when machinery of any kind is employed, and, if institutions of the defendant's character are entitled to exist at all, all that can in fairness be exacted of them is that they will employ every agency in their power to reduce this to a minimum, and when this is done it may be that annoyance will continue and damage will be worked; but the papers before me will not warrant the granting of the relief prayed for pendente lite, which, if granted, would be tantamount to an adjudication of the issues before trial. The motion is therefore denied. No costs. Settle order on notice. PORTLAND CO. v. HALL & GRANT CONST. CO. et al. (Supreme Court, Appellate Division, First Department. November 15, 1907.) 1. CORPORATIONS-FOREIGN CORPORATIONS-RIGHT TO SUE. Under the express provisions of Code Civ. Proc. § 1779, a foreign corporation created by or under the laws of any other state of the United States or of any other country with power to sue, if otherwise qualified, may sue in the courts of New York. [Ed. Note.-For cases in point, see Cent. Dig. vol. 12, Corporations, §§ 2563, 2564.] 2. SAME-PLEADING. Where defendants in a suit in the Supreme Court by a foreign corporation claimed that plaintiff had not capacity to sue, they were required to allege and prove that by some specific provision of law plaintiff was prohibited from maintaining an action in such court, under the rule that a foreign corporation suing in New York on a good cause of action pleaded will be assumed to be rightfully in the state and properly in court until the contrary is made to appear. [Ed. Note. For cases in point, see Cent. Dig. vol. 12, Corporations, § 2646.] 3. SAME STATUTES-APPLICATION-PLEADING. Laws 1892, p. 1805, c. 687, § 15, as amended by Laws 1904, p. 1250, c. 490, prohibits a foreign "stock corporation other than a moneyed corporation" from doing business in the state without first having procured a certificate from the Secretary of State, etc., and also prohibits such corporation from maintaining any action within the state on any contract made by it therein unless prior to the making it had procured such certificate. Held, that where, in a suit by a foreign corporation on a con |