7 of section 488 of the Code, relating to misjoinder of causes of action. That objection is waived (section 499) by failing to demur. See Concentrating Works v. Ackermann, 6 App. Div. 541, 39 N. Y. Supp. 585. There remains the question whether the action should have been against the attorneys in fact instead of the underwriters themselves. It appears that the original attorneys in fact were William C. Beecher and Arthur White, doing business as Beecher & Co. They appoiated Henry B. Beecher and Vincent R. Schenck, who also did business under the firm name of Beecher & Co., as assistant or deputy attorneys in fact, which latter firm signed the policies in suit. Subsequently, owing to impending troubles, the firm of Edwards & Co. was substituted as attorneys in fact by a resolution of the underwriters, who then sought to avoid liability by procuring other underwriters to take their places and assume their policy contracts, turning over to such new underwriters the funds accumulated to meet losses. These funds were exhausted or dissipated before this action was brought. It also appears that when the new underwriters failed to respond to the liabilities, and the insured who had sustained losses were seeking to charge the original underwriters, some of the latter had a meeting, and instructed William C. Beecher or his firm of Beecher & Co., to adjust losses and cancel outstanding policies. No attempt was made to carry on the business, but only to bring it to as speedy a close as possible. Under such circumstances, I do not think the requirement of the policy that suit thereon should be brought only against the attorneys in fact should be enforced. The provision is doubtless a valid one, and is also of great value and convenience to the underwriters as well as to the policy holders, where the contract and circumstances are such that there are any attorneys in fact existing, against whom a single suit can be brought to determine the liability of all the underwriters. But the courts should not be strict to enforce this requirement, when the defendants themselves have created such a situation that policy holders would have to decide at their peril which, if any, of three firms was the proper one to proceed against. As a wise and commendable provision against a multiplicity of vexatious suits against members of a going concern, the requirement should be broadly enforced; but as a technicality resorted to when disaster has come, and for the purpose of evading liabilities undisputed on their merits, it should be viewed in quite a different light. An examination of the various reported cases against companies of this kind shows that, whoever has been sued, the claim has been set up that some one else should have been. An important fact to be kept in mind is that premiums have been paid and losses sustained by the various plaintiffs, who, with the law on such cases in a very unsettled state, with decisions overruling, doubting, distinguishing, approving, or holding silence towards other decisions, have been in a difficult situation, especially as there was, owing to the limitation of actions to one year after the occurrence of the loss and to the condition of the calendars, no opportunity for a second action in case the first should prove to be against the wrong parties. The defendants rely upon and 91 New York State Reporter. the recent case of Wheelock v. Chapman, 34 App. Div. 464, 54 N. Y. Supp. 327, in which an action was maintained against the defendant, as general manager, although he did not sign the contract in any capacity; but on the contrary a printed form was used, containing the names of the 10 underwriters, and of his predecessor in the office of attorney and manager, as authority for holding that the plaintiff should here have brought its action against the acting attorneys in fact, irrespective of the fact that the policy was signed by their predecessors, and not by them. The Wheelock Case is distinguishable from this, however. There, as here, the insured, through no fault of their own, were apparently put in a position of difficulty, in ascertaining who was the representative to be sued. The court said that, under the circumstances, it ill became the defendant to object to being sued on the policy. That was not to say that suit might not have been maintained against the underwriters directly. In this case, it may be held that the action against the underwriters is proper, without thereby deciding, by necessary implication, that the acting attorneys in fact might not have been sued instead. Upon this latter point, however, it should be observed that all the policies in this case provide that "in no case shall the judgment bind the property of the said attorneys to a greater extent than the several liabilities of each of them as individual underwriters," while the corresponding clause in the case last cited was "in no case shall the judgment bind the property of the general manager," without any words to indicate that he must be an underwriter as well. I think, therefore, that these actions were properly brought, and that the plaintiff should have judgment for the several amounts demanded in the complaints, with interest and costs. Judgment for plaintiff, with interest and costs. (38 App. Div. 316.) VIETOR et al. v. LEWIS et al. (Supreme Court, Appellate Division, First Department. March 24, 1899.) TEMPORARY INJUNCTION. Temporary injunction, in suit by certain creditors to enjoin payment to other creditors of proceeds of execution sale on their prior judgment, till proceedings in bankruptcy can be taken in the United States courts to have a trustee therein appointed, who might receive such property for equal distribution among the creditors, cannot be allowed; the right to final relief not being absolute, but contingent on the happening of a future event, and the determination of proceedings, if thereafter brought in the bankruptcy court. Appeal from special term, New York county. Action by George F. Vietor and others against Nathan Lewis and others, and from an order granting a temporary injunction certain defendants appeal. Reversed. Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, O'BRIEN, and INGRAHAM, JJ. Samuel Fleishman, for appellants Cohn. Sidney H. Stuart, for appellant Lewis. Emanuel Blumenstiel, for respondents. O'BRIEN, J. The plaintiffs are judgment creditors of the firm Charles Lewis & Bro., and the defendants, other than the members of the said firm, obtained prior judgments by confession, and have issued executions, on which levies were made upon some of the firm's assets. Although the relief demanded in the complaint is in form that the judgments of these defendants and the executions issued thereon be set aside as fraudulent and void, and that the proceeds be transferred to a receiver to be appointed during the pendency of the action, the plaintiffs, on the motion, did not insist upon a receiver, but disclosed the real relief which they sought, namely, to enjoin the payment of the proceeds received by the sheriff from the sale from being turned over to the defendants having prior judg ments till such time as proceedings might be taken in the United States courts in bankruptcy to have a trustee therein appointed, who might receive such property or proceeds for equal distribution among the creditors. No sufficient showing was made to sustain the plaintiffs' charge of fraud, or that the defendants are not able financially to respond; but, on the other hand, the defendants' affidavits directly show that the judgments were for honest debts, and were obtained in good faith, and that the defendants are financially responsible. Apart, however, from the merits of the controversy or the verity of the judgments, the claim really made here was that these confessions of judgment and the transfers of account were in violation of certain sections of the bankruptcy law; and the purpose of the plaintiffs in seeking an injunction was to tie up the property until, some time thereafter, the other creditors, including these plaintiffs, might institute proceedings in bankruptcy, and, by having the property thus tied up transferred to a trustee to be appointed in such bankruptcy proceedings, secure its ratable distribution among the creditors. In other words it is sought in this action to issue an injunction for the purpose of suspending the rights of the defendants under their judgments for an indefinite time, so that the other creditors, if they deem it proper, may take proceedings in the United States courts; and this relief is asked for in an action in which it is perfectly evident that no such final relief can be given. Without discussing the plaintiffs' right to interfere with property upon which they have no lien or interest to be protected, we think that, under the provisions of the Code of Civil Procedure, a temporary injunction cannot be allowed. The right to final relief is not here claimed to be absolute, but only contingent upon the happening of a future event, and the determination of proceedings, if thereafter brought in the bankruptcy court. It has been many times decided that a temporary injunction will not be granted in such an action where the plaintiff is not entitled to final relief. The learned judge below was of opinion that an injunction could be granted pursuant to the provisions of section 1876 of the Code. The plaintiffs, no doubt aware of the danger of obtaining too much relief, although it was accorded to them, did not in their order ask for the appointment of a receiver, but contented themselves with an injunction. This caution on their part was justified; for not 57 N.Y.S.-2 and 91 New York State Reporter. only were they not entitled to a receiver, but, had they called attention to the express language of section 1876 of the Code, the learned court would have seen that the injunction thereby permitted "must be deemed to be one of those specified in section 603." The latter section relates to a case "where the right of an injunction depends on the nature of the action"; and, as already said, an injunction under that section will not be granted unless it appears that the plaintiff is entitled to the final relief for which the action is brought. McHenry v. Jewett, 90 N. Y. 58. As the plaintiffs, therefore, could not obtain, and were not entitled to, any final relief, there was no warrant for the granting of the temporary injunction, and the order must be reversed, with $10 costs and disbursements, and the motion for a temporary injunction denied, with $10 costs. All concur. (38 App. Div. 262.) SALOMON v. CORBETT et al. (Supreme Court, Appellate Division, First Department. March 24, 1899.) 1. SALE-DELIVERY. There is a delivery of carriages sold where the seller leaves them in his stable, according to the buyer's direction. 2. SAME-CONTRACT. Under a contract for sale by plaintiff to defendant of a "phaeton for $475, a brougham for $450, a sleigh for $175, total $1,100"; defendant, on resale of phaeton, to pay plaintiff "at once $550 cash, or, on sale of the brougham, $500 cash"; "the balance of the money ($550 or $500, respectively)" to remain with defendant, and be used by plaintiff either in the purchase of carriages or the repair thereof,-there is not a sale of each vehicle separately, but of the three for $1,100; and defendant having resold the phaeton, and failed to make the payment of $550, plaintiff can recover the $1,100. 3. SAME-ACTION FOR PRICE. Conversion, by the seller, of goods sold, after delivery, does not prevent recovery by him of the purchase price, the buyer not having counterclaimed for the conversion. Van Brunt, P. J., dissenting. Action by William Salomon against Eugene Corbett and others. Verdict was directed for plaintiff, and defendants move for a new trial on exceptions ordered to be heard in the first instance by the appellate division. Exceptions overrulez. Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, O'BRIEN, and INGRAHAM, JJ. Paul E. De Fere, for plaintiff. BARRETT, J. The action is for damages for the breach of a contract with respect to the purchase and sale of three vehicles. This contract is embodied in a letter from the plaintiff to the defendants, which reads as follows: "104 East 37th Street, New York, May 9th, 1894. "Messrs. Corbett & McAuliffe-Dear Sirs: I have sold you a spider phaeton for $475, a brougham for $450, a sleigh for $175, total $1,100, with the understanding that upon a resale by you of the spider phaeton you are to pay me at once $550 cash, or on sale of the brougham $500 cash; the balance of the money ($550 or $500 cash, respectively) to remain with you, and be used up either in the purchase by me of carriages or repairs thereof. In case you shall not have sold either the phaeton or the brougham in time to give me a check on or before May 16th, you will please, when the payment is to be made, make it for my account to Speyer & Company, Mills Building. "Please acknowledge correctness of this and oblige, "Yours, truly, W. Salomon." It is averred in the complaint and admitted in the answer that the plaintiff delivered to the defendants one of these vehicles, the phae ton. It is also averred that the plaintiff tendered to the defendants the other two vehicles, but that the defendants refused to receive, accept, or pay for them, and refused to further execute the agreement, or to fulfill the terms and conditions thereof. This averment is denied His in the answer. Upon the trial the plaintiff proved that he did more than tender the two other vehicles; he, in fact, delivered them. coachman testified without contradiction that, when the contract was made, Corbett asked him "to leave the carriage at the plaintiff's stable until the plaintiff's lease expired," and they were accordingly left there. Corbett testified that when he received the letter which constitutes the contract he called on the plaintiff, and the latter informed him that he could use the stable until such time as he (Corbett) eventually could take the carriages to his shop. There was thus, in effect, a delivery of the carriages under the contract. They remained thereafter in the plaintiff's stable as the defendants' property, the plaintiff being but a gratuitous bailee thereof. The evidence on the latter head was introduced without objection. No point was made of a variance be tween the allegations of the complaint and the proofs. The case was tried upon these proofs, and determined upon their legal effect. The only point made by the defendants was that the plaintiff had failed to prove a cause of action. The transactions referred to occurred in May, 1894, and the vehicles remained in the plaintiff's stable until July, 1894, when the defendants removed the spider phaeton, which they had sold to one Bishop. Upon this latter sale the defendants be came bound under the contract to pay the plaintiff "at once $550 cash." They failed to make this payment. It was not until the 16th of the following October that they made any payment, and they then paid but $300.80 upon account. That, in fact, is all they have ever paid. They were told by the plaintiff's agents that they could have the other two vehicles when they paid the balance of the $550. After many unavailing requests for this balance, the plaintiff sold these other two vehicles, realizing as the net proceeds of the sale $186.75. He credited the defendants with the latter sum on account of the total amount of $1,100 payable under the contract. He also credited them with $32.10 for certain repairs which they had made to some broughams of his. These two sums, with the $300.80 paid upon account of the $550, aggregate $519.65. Deducting the latter sum from the $1,100, we have a balance of $580.35. For the latter sum, with interest,-in all, $697.77,-the learned trial judge directed a verdict for the plaintiff. There was no disputed question of fact, and the parties respectively requested a direction. Their requests were general, and specified no grounds. Whether the direction was correct depends, therefore, up |