author: Patterson, J.

text:
    William Z. Larned et al., Pl’ffs, v. Daniel E. Donovan et al., De’fts.

      (Supreme Court, New York Special Term,

      Filed April, 1894.)

      1. Mortgages—Compelling satisfaction.
    . ' Decree to compel mortgagee to "accept payment and satisfy mortgage will not be granted, where no tender had been made to, and no refusal to satisfy the mortgage on payment by, the mortgagee.
    2. Same—Assignment.
    Where there is no bond or evidence of debt other than the mortgage, an assignment of the right to receive payment of the sum mentioned in the mortgage, is sufficient to transfer the mortgage debt.
    3. Same—Recording.
    The recording of the assignment of a mortgage is notice thereof to the purchaser of the equity of redemption.

      Larned, Warren & Knapp, for pl’ffs; Warner W. Westervelt, for def’t.
   Patterson, J.

—The plaintiffs seek relief against the defendants, Donovan & Golding, under the following circumstances : In 1885 the plaintiffs were owners of certain lots of land at Ninth avenue and Sixty-eighth street, in the city of New York, and desiring to have them improved by building upon them, conveyed them to Daniel B. Algie, for the expressed consideration of $75,000, and took back a purchase-money mortgage for $74,000, at the same time entering into an agreement with Algie to make advances to him from time to time and at certain stages in the construction of the buildings, Algie agreeing to give as security for such advances a second mortgage. Algie entered upon the performance of his contract, and employed the defendant Golding to furnish and set up the bluestone required for the houses (seven in number) he had contracted to build Golding bought bluestone to the value of about $2,400 from Donovan, and some of it was used in these houses. Algie, on January 11, 1886, was indebted to Golding, and on that day gave him a mortgage on one of the seven houses to secure the sum of $1,130, declared in the mortgage to be an agreed indebtedness of the mortgagor to the mortgagee. There was neither bond, note nor other written obligation or evidence of indebtedness given, save as stated in the mortgage ; but it is made satisfactorily to appear that that instrument was given to secure Golding for the agreed indebtedness. It also appears that Golding bought blue-stone of Donovan, as above stated, and that some of such stone was used by Algie in the construction of the houses, there can be no reasonable doubt. In March, 1886, Algie became unable to go on with the work under his contract, and thereafter efforts were made by Mr. Darned, one of the plaintiffs, to bring about an arrangement whereby the work could go on, and the creditors of Algie be satisfied respecting their claims. Such an arrangement was finally made, one of the terms and conditions being that Golding should satisfy the mortgage given him by Algie. On or about May 14,1886, Golding executed a satisfaction piece of the mortgage, which was acknowledged on June 26, 1886, and he delivered it to Mr. Darned. At the same time, he handed Mr. Darned a statement to the effect that Algie was indebted to him “for material supplied at building Sixty-eighth street and Ninth avenue ” (the premises in question), in the sum of $574.41. Meanwhile, and on May 4,1886, Golding had, by instrument undpr seal and duly acknowledged, assigned and transferred to the defendant Donovan the very mortgage he subsequently satisfied, and such assignment was recorded on May 7, 1886, a week before the satisfaction piece was given. The premises have again become the property of the plaintiffs in fee, and the relief they ask is that the mortgage be canceled as a cloud on plaintiffs’ title or that it be ascertained what, if any, amount is due Donovan from Golding, and that a surrender and cancellation of the mortgage be decreed on the plaintiffs paying the amount found due, and that judgment for damages be rendered against Golding for any sum the plaintiffs may be required to pay Donovan to procure satisfaction, etc., of the mortgage.

I am entirely satisfied that Golding did owe Donovan $2,400 for bluestone furnished by the latter ; that some of it went into the houses, and that the statement of Algie’s account with Golding, dated May 12, 1886, refers only to the amount of bluestone then supplied by Golding, and does not and cannot operate to the disadvantage of Donovan, who was in no way connected with any of the transactions or negotiations had at Mr. Darned’s office respecting the settlement, compromise, or release of the claims of the creditors of Algie. There is nothing to refute the testimony of Donovan on that subject, and I am satisfied that the mortgage was duly assigned as partial security (the witnesses say, in part payment) for the whole indebtedness of Golding to Donovan, and that there is nothing in the whole case which, as a matter of fact, can successfully impeach the title by which Donovan holds the mortgage. Nor do I find in the evidence anything to limit the rights of Donovan, as a bona fide holder of the mortgage, to any amount less than the whole sum secured by it; and hence there cannot be a finding made on the facts of this action, specifying any sum at which the plaintiffs may pay off the mortgage and require satisfaction and cancellation thereof by Donovan. Nothing less than the whole sum appears to be the amount due, and it does not need a decree of this court, in this action, to allow the plaintiffs to pay off the whole amount due on a mortgage and to require a discharge thereof on such payment, no tender ever having been made, and no refusal of Donovan to satisfy the mortgage on payment in full having been shown. He cannot be put in the wrong respecting the substantial question in this action, and have judgment rendered against him, when no application has ever been made to him to satisfy the mortgage on tender of the whole amount. Hor can I see how any money damages can be recovered against Holding in this action. His duplicity was great, and he was unable, on the stand, to excuse or palliate it; but no recovery can be had against him now, because, if for no more substantial reason, the amount of damages sustained, if any, has not been proved. Incontestably, a court of equity having jurisdiction of parties and subject-matter may, in many cases, on the failure of a plaintiff to show his right to, or where, by reason of changed circumstances, the court could not effectively grant, the specific relief demanded, prevent a failure of justice by directing a money judgment, as in the case of a bill for specific performance. The recent cases in this state have carried that rule very far, and a fair illustration of its application is in Valentine v. Richardt, 126 N. Y. 272 ; 37 St. Rep. 12 ; where a fraudulent grantee who conveyed land to a bona fide purchaser was compelled to pay the real owner the purchase money, not as damages, but as a substitute for the land itself, he being charged as a trustee ex maleficio. But such cases do not apply here. ¡Nothing is asked, as against Holding, but (in a certain contingency) damages unascertained and unliquidated. Even if they might be recovered, the factors necessary to their ascertainment are wanting. ,,

It is claimed by the plaintiffs, that the title to the mortgage was not vested in Donovan by the assignment from Holding, for the reason that nothing was actually transferred but the naked security, without the principal debt, or a bond or note or other obligation, the evidence of such debt. It is true that an attempt to make title to a mere security without transferring the obligation to which it is collateral is a futility, and that the incident passes only by grant of the principal, and not the principal by transfer of the incident. Merritt v. Bartholick, 36 N. Y. 44. But what must be transferred with the security is the debt. It is not needful that, under all circumstances, there should be either bond, note, or other formal written evidence of the debt. The consideration of the mortgage made by Algie to Holding was an “agreed indebtedness, then recently incurred, of $1,130 ;” and that is expressed in the mortgage, and nowhere else, and by no other instrument. The assignment from Holding to Donovan expressly sets over the right to receive payment of the sum mentioned in the mortgage, —that is, the amount of the agreed indebtedness of the mortgagor to the mortgagee,-^-and thus it is shown that the principal debt of Algie to Holding was assigned to Donovan. It is further urged that the equities of the plaintiffs cannot be defeated, because they are not bound by the assignment of the mortgage, they being without notice thereof. That assignment was recorded May 7, 1886, some days before Golding gave the satisfaction piece of the same mortgage to the plaintiffs. It is argued that such recording does not constitute constructive notice to the plaintiffs, and in support of this contention reference is made to section 41 of the statute relating to recording deeds (1 Rev. St. p. 763, § 41,) which enacts that “the recording of an assignment of a mortgage shall not be deemed, in itself, notice of such assignment to a mortgagor, his heirs or personal representatives, so as to invalidate any payment made by them, or either of them, to the mortgagee.” I fail to see how, by any process of reasoning, or by what analogy, this provision of the Revised Statutes can affect this case. It relates only to payments made by a mortgagor, or his heirs, etd, to a mortgagee, and does not, in terms, nor by any implication, refer to the owner of the equity of redemption, and this has been distinctly held. Brewster v. Carnes, 103 N. Y. 556; 4 St. Rep. 264. The complaint must therefore be dismissed as to the defendant Donovan, on the merits, but without costs. They are withheld because he has stood by all these years and never asserted a claim under or sought to enforce the mortgage, and has by his supineness encouraged the plaintiffs to believe that they had some equity superior to his rights, and this suit having been brought in good faith, to ascertain what the relative rights of the parties are. The complaint is also dismissed as to Golding, but not on the merits, and without costs, because of his gross deceit in dealing with the plaintiffs. Findings settled ; the attorney for defendant Donovan will make an engrossed copy of all the findings made, and present it for signature within three days, and on giving two days’ notice of settlement of decree to the plaintiffs’ attorneys.


source: Caselaw Access Project

author: Gaynor, J.

license: Public Domain

text:
    Maximus A. Lesser, Pl’ff, v. Ida Keller, as Administratrix, etc., Def’t.

      (Supreme Court, Kings Special Term,

      Filed May, 1894.)

    Pleadings—Answer.—Executor, etc.
    An answer, in an action against an administrator for money loaned to decedent, does not state a defense, where it sets up neglect to present claim within the limited time without alleging a distribution of the assets of the estate.
    The answer, after a denial on information and belief, continues as follows: “ Further answering, and fór a defense, this defendant alleges that subsequent to the appointment and qualification of this defendant as administratrix of the estate and effects of Raphael Keller, deceased, and on the 2d day of October, 1891, an order was duly made by the surrogate of the county of New York, pursuant to statute in such case made and provided, directing this defendant, as such administratrix, to publish a notice requiring creditors to present their claims to her at the office of Blumenstiel & Hirsch, No. 320 Broadway, New York city, on or before the 15th day of April, 1892, and further directing that such notice should be published once in each week for six months in the New York Law Journal and Uptown Press; that such notice was duly published in the Hew York Law Journal and in the Uptown Press, as required by said order; and this defendant alleges that no demand or claim was presented to her by the plaintiff within the time limited by such notice so published; and that payment of said claim was not unreasonably resisted or neglected; and that this defendant did not refuse to refer the claim of this plaintiff as prescribed bylaw.’’ To this alleged “ further defense,” plaintiff demurs, on the ground that it is insufficient in law upon the face thereof.

      M. A. Lesser, in pro. per.; Blumenstiel & Hirsch, for def’t.
   Gaynor, J.

—-The facts pleaded in subdivision as a defense are not a defense. I reluctantly sustain the demurrer. At the same time the tendency to loose and unscientific pleading is leading to bad results, and ought to be checked.


author: Martin, J.

text:
    Eugene J. Kline, App’lt, v. John P. Hibbard et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1894.)

    Malicious prosecution—Official acts.
    An action for malicious prosecution cannot be maintained against highway commissioners for causing plaintiff to be arrested for resisting them while they were lawfully removing an obstruction from the highway.
    Appeal from a judgment dismissing the complaint on the merits

      Homer Weston, for app’lt; Goodelle & Nottingham, for resp’ts.
   Martin, J.

—This action was for malicious prosecution. The defendants were commissioners of highways of the town of Onondaga, H. Y. It appeared by the undisputed evidence in the case that in the village of Onondaga Valley, a hamlet in the town of Onondaga, a strip of land about 60 rods in length and 6 rods in width had been used uninterruptedy by the public for street and other purposes for a period of much more than 20 years. The plaintiff was the owner and in possession of a lot which fronted upon this land. Some time in the summer or fall of the year 1892, he inclosed a portion of it in front of ,-his premises, by surrounding it with a pipe and post fence, by which the public was excluded therefrom and deprived of its use for the purposes for which it had formerly been used. The land inclosed had been used for more than 20 years as a road or passageway for travelers on foot, and sometimes teams were driven upon and across it. A sidewalk passed over it, and was in general use by persons going along that side of the street. The manifest object of the plaintiff in erecting this fence was to procure the use of a portion of this land to which he had no right, and to deprive the public of its use for any purpose, and especially as a street or highway. That he had no title to the premises thus inclosed, except such as was subject to the public easement, is obvious from the proof in this case. After he had thus inclosed this land, and on or about Hovember 26, 1892, the defendants as commissioners of highways of the town of Onondaga, served upon him a written notice requiring him forthwith to remove his fence and a sidewalk he had built in front of the land so inclosed. The plaintiff did not comply with the requirements of this notice, but permitted the fence and walk to remain there until December 5, 1892. On that day, the defendants, as such commissioners, went to the place where the fenpe and sidewalk were, and commenced to remove them, to enable the public to have the use of the premises for the purpose of passing over them as they had previously done. While the defendants were engaged in removing these obstructions, the plaintiff attempted to prevent them from doing so, and forcibly resisted the defendants in their efforts to remove them. Thereupon, the defendants went to the office of George B. Clark, Esq., who was a justice of the peace in and for the town of Onondaga, and stated to him the facts relating to this transaction, who advised them that the plaintiff was liable to arrest, under the provisions of §§ 47 and 124 of the Penal Code, for resisting public officers while engaged in the performance of their duties. The defendants then made a written complaint, in which it was in effect stated that, while they were attempting to perforin their duties as such public officers, by removing the fence and walk in question, the plaintiff with force and arms willfully resisted them, and directed the men. in his employ to aid him therein. Upon this complaint, the justice issued a warrant for a violation of §§ 124 and 47 of the Penal Code, in resisting public officers in discharging or attempting to discharge, the duties of their office, and the plaintiff was subseqently arrested thereon. Afterwards he moved for his discharge on the ground of the insufficiency of the complaint and warrant,’ which motion was denied. He then pleaded “Not guilty,” and elected to be tried by the justice and a jury. A jury was subsequently drawn, but, upon the adjourned day, the complainants were permitted, against the plaintiff’s objection, to withdraw the warrant, and no further proceedings were had in the matter. The plaintiff was not imprisoned, except that he was arrested by an officer, taken before the justice, and afterwards permitted to go where he pleased, but' directed to be present at the times to which the proceedings were adjourned. It is for this prosecution and arrest that this action was brought.

On the trial, after the evidence was closed, the court granted a nonsuit. The grounds upon which the motion was made, briefly stated were : “That the evidence failed to show a cause of action ; that the plaintiff failed to show any right or title in himself to the premises in dispute, or any right to build a fence or walk thereon; that he failed to show want of probable cause for making such complaint and arrest, and that there was no evidence of malice in making the complaint. The correctness of the court’s ruling in non-suiting the plaintiff is challenged by him, and presents the most important and substantially the only question involved in this case.. That the strip of land inclosed by him, had been dedicated to the use of the public, and accepted for highway purposes among others, there can, we think, be no doubt. Therefore, in examining the question in this case, it must be assumed that the land in question had been dedicated and accepting for the purposes for which it had been used by the public for more than 20 years, and that one of the purposes was the use of it as a sidewalk by persons traveling along that side of the highway, and for driving upon when desired. We think the land in question had so far become a part of the public street or highway as to authorize the defendants, as such commissioners, to remove any obstruction to the ordinary travel over it. Hence the question arises whether the defendants, in removing such obstructions, were confined to the statutory remedy for the removal of encroachments upon public highways, or whether they might, in their discretion, remove them without resorting to such proceedings. That question is not an open one in this court, ás it lias, in effect, been held by us that commissioners of highways, in the discharge of their official duties, may remove an encroachment upon a highway after notice thereof, although informal. Hathaway v. Jenks, 67 Hun, 289; 50 St. Rep. 769. Thus we are led to the conclusion that the defendants, as such commissioners, in the discharge of their official duties, were authorized to remove the obstructions in question. That the defendants were public officers was known to the plaintiff; that they were acting in the discharge of their official duties as such in the removal of the fence and sidewalk was apparent, and must have been understood by him, and he admits that he resisted them in the performance of such duties. Under these circumstances, we do not think he was entitled to recover, or to have any question in the case submitted to the jury. It is the lawful right of every person to institute and set on foot criminal proceedings whenever he believes a public offense has been committed, and it would be both unjust and impolitic to make the prosecution which fails an actionable wrong, nevertheless, it is a duty which every one owes to another not to institute proceedings maliciously against him, which he has no good reason to believe are justified by the facts and law. An action or proceeding instituted by a person against another from wrongful or improper motives, and without probable cause to sustain it, is a malicious prosecution. There is a distinction between malicious prosecution and a malicious abuse of legal process. An abuse of legal process is where a party employs it for some unlawful object, and not to effect the purpose for which it was intended by law. It is clear that this action was for malicious prosecution, and not for a malicious abuse of legal process, although the appellant in his brief seems to intimate that it was for the latter. To sustain an action for malicious prosecution, it is necessary that three elements shall concur in the transaction complained of: (1) The proceeding must have been instituted without probable cause; (2) there must have been malice in instituting it; (3) it must have been completely terminated. The want of probable cause is the essential basis of the action, and the burden is upon the plaintiff to prove, by circumstance or otherwise, that the defendant has no probable ground for commencing the prosecution. What facts and circumstances amount to probable cause is a pure question of law: but whether they exist or not may be a question of fact. If the facts are controverted, then the question of probable cause should be submitted to the jury, with instructions from the court as to the law. But when the facts are undis puted, or the plaintiff’s evidence fails to show want of probable cause, it becomes a mere question of law, which the court must decide. These principles are so far elementary that no authorities need be cited to sustain them. Applying them to this case, it is obvious that the question of want of probable cause was one of law, to be decided by the court. A careful consideration of the evidence in this case has led us to the conclusion that it was insufficient to justify the court in holding that there was a want of probable cause, or in submitting the case to the jury, and that the plaintiff was properly nonsuited. Having examined the other exceptions to which our attention was called by the- appellant’s brief, and having found none that would justify a reversal of the judgment, or that requires special examination, we think the judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


author: Cullen, J.

text:
    George Ganz, Resp’t, v. Edison Electric Illuminating Company of New York, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed June 18, 1894.)

    Venue—Change—Demand.
    Service of demand for change of venue is in due time, if made on the day of, though after, the service of the answer.
    Appeal from an order denying a motion to change the place of trial.

      Cantor, Linson & Van Schaick, for app’lt; Eaton & Lewis, for resp’t.
   Cullen, J.

—This is an appeal from an order denying defendant’s motion to change the place of trial. The venue was laid in Westchester county, and the application was based on the ground that such was not the proper county, neither party residing therein. The facts were conceded, but the motion was resisted on the ground that the demand for change of place of trial was not served till some hours after the service of the answer, though served upon the same day. We think that the demand was served in time. The general rule is that the court will not divide a day in fractions, except for the purpose of guarding against injustice. Blydenburgh v. Cotheal, 5 How. Pr. 200; Jones v. Porter, 6 How. Pr. 286; Clute v. Clute, 4 Denio, 243 ; Small v. McChesney, 3 Cow. 19. “Where the ends of justice do not demand it, the court will not inquire at what particular hour the process, pleadings, or notices in a cause were served.” Rogers v. Beach, 18 Wend. 533. As the demand was served in time, the. application was one of right.

The order appealed from should be reversed, with $10 costs, to abide the event.

All concur.


text:
    Mathushek Piano Manufacturing Company, Resp’t, v. James Pearce, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed June 18, 1894.)

    Receivers—Discovery oe property.
    The court may require a debtor, of whose property a receiver has been appointed, and who has failed to obey an order to deliver to him his books and papers, to submit to an examination concerning his property.
    Appeal from an order requiring defendant to appear for examination.

      J. H. Whitelegge, for app’lt; William A. Abbott, for resp’t.
   Cullen, J.

—In this action a receiver was appointed of all the pianos received by defendant and in his custody, and of all contracts for the sale of pianos made on installments, and of all leases, and of all amounts uncollected thereon ; and the defendant was ordered to deliver to the receiver all contracts and leases, and all books, papers, and accounts relating thereto. The defendant failing to deliver any books of account, he was ordered to appear for examination concerning the disposition of the pianos, and the amounts due from any parties thereon. From that order this appeal was taken.

We think that the order was properly made. The examination of the defendant was not that of a party to the action,' at the instance of his adversary, to be used as evidence; hence it was not necessary to set forth in the moving affidavits the statements required by the Code of Procedure to obtain such examinations. This examination was in aid of the receivership. It was necessary for the receiver, in order to properly perform his duties, to know where the pianos were, who had them, and under what terms, what amounts were still owing on them; and the court had the inherent power to direct the examination to give the receiver such information.

The order appealed from should be affirmed, with $10 costs and disbursements.


text:
    Merchants and Manufacturers’ National Bank of Middletown, Resp’t, v. Ira T. Cummings, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed June 18, 1894.)

    Principal and surety—Security.
    A creditor is entitled to the benefit of collateral security given by the principal to his surety.
    .Appeal from a judgment in favor of plaintiff.

      Daniel Finn, for app’lt; George H. Dicker, for resp’t,
   Cullen, J.

—This is an appeal from a judgment in favor of the plaintiff, entered on the decision of the special term,before which this cause was tried, without a jury. One Joseph Cummings made liis note for $2,000, to the order of John L. Cummings, which the latter indorsed for the accommodation of the maker. The note was discounted by the plaintiff. As security for such indorsement, Joseph Cummings made a second note to John L. .Cummings for the same sum, and payable at the same date, which note, before delivery, was indorsed by the defendant, Ira T. Cummings, for the like purpose of securing the first-narned indorser. John L. Cummings assigned this hitter note to the plaintiff, who, upon default in the payment of the first note, brought this suit. Ira T. Cummings, the indorser, alone defends.

On the back of the second note was written, at the time of its delivery, this statement:

“This note is given and is to be held by John L. Cummings as collateral security for his indorsement on my note, same date, tenor, and amount, favor of John L. Cummings, to be by him indorsed and delivered to the Merchants’ and Manufacturers’ Bank of Middletown. * * *
“[Signed] Joseph Cummings.”

It is conceded that, though John L. Cummings is the payee and the defendant the indorser on the note in suit, still, by the original agreement between the parties, the defendant is liable as indorser to the payee. The recovery is resisted upon the ground that the payee has paid nothing on account of the original note, and that, therefore, no liability has accrued on the collateral note. We do not think it worth while to follow the elaborate discussions in the briefs of counsel as to the character of the note in suit as affected by the written statement on its back. We may admit that the note could not have been disposed of by the payee either before or after maturity, so as to constitute any obligation against the parties to it, separate from the debt created by the original note discounted by the plaintiff. Still, we think the plaintiff was entitled to recover on it. John L. Cummings, the accommodation indorser, was in the nature on a surety of the debt of the plaintiff. The note in suit was a security to the surety. “ It is a settled rule in equity that the creditor shall have the benefit of any counter bonds or collateral securities which the prinbipal debtor has given to the surety, or persons standing in the situation of surety, for his indemnity. Such securities are regarded as trusts for the better security of the debt, and chancery will compel the execution of the trusts for the benefit of the creditor.” Vail v. Foster, 4 N. Y. 312. It is not necessary that the surety shall have paid anything on account of his liability, as such, to give the creditor the right to enforce the collateral obligations. In fact, if the creditor could collect his claim directly from the surety, ordinarily he would have little need to seek these collateral securities. In Vail v. Foster, supra, the principal debtor gave his surety a bond and mortgage as security. The surety paid nothing on the principal debt, and became insolvent. The creditor was held entitled to foreclose the mortgage for the payment of his claim. The case of Crosby v. Crafts, 5 Hun, 327; affirmed, 69 N. Y. 607, is still stronger. The debtor confessed judgment in favor of the surety for the amount of the debt. It was assumed that the estate of the surety' was discharged from any liability by his decease; yet it was held that the j udgment still remained a valid lien, as security for the benefit of the creditor. It follows that the plaintiff could compel John L. Cummings to assign the note in suit to him, and could enforce its payment.

The j udgment appealed from should be affirmed, with costs.

All concur.


text:
    Clara Harmon, App’lt, v. Vanderbilt Hotel Company, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed June 18, 1894.)

    Pleadings—Complaint—Cobpobations.
    A complaint is not demurrable on the ground that it fails to state whether defendant is a foreign or domestic corporation.
    Appeal.from an interlocutory judgment sustaining a demurrer to the complaint.

      H. D. Birdsall, for app’lt; William Sulzer, for resp’t.
   Cullen, J.

—This is an appeal from an interlocutory judgment entered upon an order sustaining a demurrer to the plaintiff's complaint. The objection taken to the complaint is that, while it states that the defendant is a corporation, it fails to state whether it is a domestic or a foreign corporation, and, if foreign, under the laws of what sovereignty incorporated. That the complaint is defective in failing to make such an averment, which is required by § 1775 of the Code, cannot be doubted. But the question here involved is whether such defect is ground for demurrer, or the subject of motion. It has been the subject of numerous conflicting decisions in this court and in the superior city courts. The exact point has not been determined by the court of appeals, or passed on in this general term. We are therefore at liberty to decide it as a new question.

The grounds of demurrer are specified by § 488 of the Code. The only specified ground under which the demurrer in this case can be brought is that the complaint fails to state facts sufficient to constitute a cause of action; for the cause of action arose in this state, and, even if the defendant were a foreign corporation, the court would have jurisdiction of the subject of the action. The cause of action is the facts which constitute the grounds of the claim against the defendant. In Fox v. Erie Preserving Co., 93 N. Y. 54, it is said: “ The allegation that the defendant is a corporation is no part of the cause of action, but simply relates to the character or capacity of the defendant.” This dictum is not obiter, as suggested, but strictly in point to the question involved in that case. It is true that the provisions of § 1775 of the Code were not under consideration in that case, and that the provision of that section that the complaint shall state the character of the corporation is mandatory. But § 481 is equally mandatory that the complaint shall specify the place of trial, and the names of all the parties. For defect in these respects, it is settled practice that demurrer will not lie, but that the remedy is by motion. If the complaint stated erroneously the character of the defendant,— whether a domestic or foreign corporation,—it would not affect the right of the plaintiff to recover. We do not see that an allegation can be deemed part of a cause of action, the successful controversion of which cannot defeat the action.

The order appealed from should be reversed, with costs, and judgment given for plaintiff on demurrer with costs, with leave to defendant to answer' within twenty days, on the payment of such costs. All concur.


text:
    The People, Resp’t, v. Henry J. Luhrs, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed June 18, 1894.)

    Jurisdiction—Special sessions.
    Special sessions does not lose jurisdiction from the fact that the trial before it, commenced on Saturday, was continued into Sunday.
    Appeal from a judgment of conviction for selling liquor without a license.

      M. H. Hirschberg, for app’lt; S. E. Dimmick, for the People.
   Cullen, J.

—The defendant was tried in a court of special sessions, charged with selling liquor without a license. The trial commenced on Saturday, and was continued into Sunday morning, when the jury was charged, the defendant convicted, and sentenced. For this error of holding the trial on Sunday the court of sessions reversed the conviction and judgment, and ordered a new trial in that court. From so much of the judgment as directs a new trial in the court of sessions, this appeal is taken.

We think there can be no doubt that, when a new trial is ordered on appeal from a court of special sessions, trial, under the Code of Criminal Procedure, is to be had in the court of sessions of the county. Section 768 of the Code, referring to appeals from courts of special sessions, provides : “If a new trial be ordered, it must be had in the court of sessions, in the same manner as upon an issue of fact upon an indictment.” As indictments are not triable in courts of special sessions, it is manifest that the court mentioned in the section is the court of sessions of the county.

The plaintiff contends “that, the judgment being void, the justice lost jurisdiction of the action, and no appellate court can restore it to life.” It may be that the judgment was so void that it could be attacked collaterally, but it was none the less an erroneous judgment. “A judgment may be erroneous, and not void, and it may be erroneous because it is void.” Ex parte Lange, 18 Wall. 163. Conceding, for the argument, that the defendant might have been discharged on habeas corpus, he was not precluded from seeking relief by appeal. This mode he adopted, and, having taken it, he must abide the practice prescribed by the Code on appeal

The point that by the trial on Sunday the justice lost jurisdiction of the charge, and the defendant obtained immunity for his offense, is without any foundation. In People v. Connor, 142 N. Y. 130; 58 St. Rep. 631, the defendant was tried on an indictment in the court of sessions, and convicted. It appeared that one of the justices of that court was related to the defendant within the statutory degree. Thereupon, the prior conviction was set aside, and upon the new trial the defendant was again convicted. On appeal it was held that, the first trial being a nullity, the defendant was properly again placed on trial. The judgment of the court of sessions, appealed from, should be affirmed.


text:
    Samuel J. Campbell, Resp't, v. Albert Friedlander et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed June 18, 1894.)

    Pleadings—Demurrer—Frivolous.
    A demurrer is not frivolous if 'it presents questions which, fairly admit debate.
    Appeal from an order overruling a demurrer to the complaint, as frivolous.

      Charles S. Simpkins, for app’lts; Spiegelberg & Wise, for resp’t.
   Cullen, J.

—We think that the demurrer of the defendant presented questions which fairly admitted debate, and hence it was not frivolous. The order appealed from should be reversed, with $10 costs and disbursements. All concur.


author: Bradley, J.

text:
    Joseph Van Camp, Resp’t, v. Edward P. Searle, as Sheriff etc., Impleaded, etc., Resp't.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    1. Attachment—Affidavit—Objections.
    Objections by creditor to sufficiency of affidavit must be made on motion to vacate the attachment.
    2. Same—Withdrawal of execution—Lien.
    Withdrawal of execution in attachment after levy does not affect the lien on the attachment.
    3. Same—Against executors.
    An attachment may be issued in an action by an administrator de bonis non against an executor whose letters have been revoked.
    4. Same—Levy on real property.
    Attachments, levied on land, have priority in the order in which they were delivered to the sheriff.
    5. Same—Statement of grounds.
    The warrant, in this case, was held to state sufficiently the grounds of the attachment.
    \
    Appeal from a judgment determining the rights of the parties.

      George Bullard, for app’lts Orleans Co. Nat. Bank and Sawyer; Horace McGuire, for app’lts Buell & Bloss; David N. Salisbury,
      for pl’ff and def’ts Keeler & Salisbury; S. E. Filkins, for resp’t Searle; Signor & Wage, for resp’ts Blood and another; John Cunnoon, for resp’t Hallock ; Thompson & Spencer, for resp’ts Rice and Briggs.
   Bradley, J.

—The purpose of the action is the determination of the rights of the parties, other than the defendant Searle, as sheriff, to the proceeds of the property of Benjamin Yan Camp. He was treated as an absconding debtor, and, in more than 20 actions instituted against him, warrants of attachment against his property were issued," and delivered to Searle, the sheriff of Orleans county. Some of them were levied upon his personal property, and the others, and the most of them were levied upon both real and personal property; and although, after the levy of the attachments, a large number of judgments were entered upon his confession, the controversy in this action has relation merely to those parties in whose behalf attachments were issued, and levied on the property of the debtor. The defendant Searle, as sheriff, paid out of the proceeds of the personal property the amounts of the judgments recovered by defendants Mary J. Blood, Dellie W. Blood, Bidelman, Chester, Coann, and Rice, and returned the executions issued upon their judgments “Satisfied.” He also paid to defendant Brumer $96.65 of the amount of his execution. Warrants of attachment were issued in the actions in which those judgments were recovered, and the levy of them by the sheriff upon the personal property was prior to that in behalf of any other of the parties; and those payments, with the sheriff’s fees and poundage, exhausted all the proceeds of the personal property, except $110.82.

The payment of the executions in favor of the defendants Blood is challenged for the alleged reason that their warrants of attachment had not the support of affidavits sufficient to justify their issue, and a like objection is made to the order for service of the summons by publication. The affidavits to obtain these attachments were alike in their provisions, and while they stated that Yan Camp had departed from this state with the intent to defraud his creditors, and to avoid the service of a summons upon him, they failed to state any facts tending to support such charges, and were therefore insufficient to protect the attachments, against a motion to vacate them. But no such motion was made, and as the money has been paid upon their judgments and executions, in discharge of the lien, the question of the insufficiency of the affidavits is not, as against those parties, available to the appellants. Code Civ. Proc. § 682 ; Woodmansee v. Rogers, 82 N. Y. 88. As the summons in each of those actions were served by publication, the sufficiency of the affidavits was essential to bring the actions within the jurisdiction of the court; and if they did not come up to the statutory requirement in support of the order of publication the judgments were void, and the plaintiffs in them acquired no rights under or through mesne or final process in their actions. Fischer v. Langbein, 103 N. Y. 84; 2 St. Rep. 768. The view taken is that the affidavits upon which the order of publication were founded were such as to render the service of the summonses made in each of those cases effectual.

The objection urged against the application of the payment to the satisfaction of Bidelman’s execution relates only to the sufficiency of the affidavit upon which the attachment was issued. So far as the defendants Bidelman, Chester, and Bice are concerned, what has been said about the payment of the executions of the Bloods is applicable to them, and in a like manner to the amount paid upon defendant Bruner’s execution. As Coann is not a party to this action, no inquiry is required about the payment of liis execution ; and, so far as the processes which came to the hands of the sheriff were regular on their face, he was justified in the execution of them. Savacool v. Boughton, 5 Wend. 170; Sheldon v. Van Buskirk, 2 N. Y. 473 ; Woolsey v. Morris, 96 N. Y. 315. The first executions which carne to him upon the judgments of defendants Blood were general executions provided for by § 1369 of the Code, and he paid them. Afterwards, and before those defendants became parties to this action, they refunded to defendant Searle the amount so paid them, and thereupon special executions, according to the provisions of § 1370, were issued to him, and lie paid to them, thereupon, respectively, the amounts of the executions. The former were irregular, and the latter were regular upon their face, for the purpose of collection or payment from the proceeds of the attached property. The error was cured by the refunding of the money, and the issue of the executious in proper form, and the satisfaction of them, although, by expiration of the term of his office, the defendant Searle had ceased to be sheriff at the time the second executions were issued to him. Code, § 706. The proceeds applicable to the discharge by payment of the liens of their attachments may be deemed to have been held by him for that purpose until paid in satisfaction of the executions, which were regular in form, issued to him. Lynch, v. Crary, 52 N. Y. 184. And there seems to be no difficulty about the regularity, on their face, of the attachments and executions of the parties to whom the payments were so made, other than the attachment of the defendant Bidelman and the execution of the defendant Bruner. In that attachment it was recited that it appears by the affidavit “that the said defendant has absconded from the county of Orleans, the place of his residence, with intent to defraud his creditors.” The statute provides that the warrant “must briefly recite the grounds of the attachment.” Code Civ. Proc. § 641. The recital in the Bidelman. attachment is not a statutory ground for the issue of such process. Id. § 636. In the affidavit upon which it was issued, the ground stated for the application is that Van Camp had departed from this state, where he resided, with the intent to defraud his creditors; and some facts and circumstances are there mentioned, intended to support that allegation, and, although somewhat slender, they are such as to justify that conclusion, and give support to the attachment. For that reason the incomplete recital in the process is not fatal to its validity.

The execution issued upon the judgment recovered by the defendant Bruner is not set out in the record, but the court found that it was issued in the form prescribed by § 1369 of the Code. This was irregular, and as the provisions of § 1370 are imperatively applicable to an execution issued upon a judgment recover•ed in an action in which an attachment is issued and levied, and the summons not personally served, the execution was void. Place v. Riley, 98 N.Y. 1. The sheriff, therefore, was not justified in making payment upon that execution. The question as to the validity or regularity of the payments made upon the executions of defendants Bidelman and Bruner is not raised by exceptions of any of the appellants, other than Keeler and Salisbury. The real estate of Yan Camp, upon which attachments were levied, was sold by virtue of executions on the 15th day of February, 1889; and on the part of the appellants, other than Keeler and Salisbury and the plaintiff, it is insisted that the proceeds of the sale were applicable only to the executions which were in the sheriff’s hands at the time of the first publication of his notice of sale, and at the time the sale was made, and that, as the consequence, the proceeds of the sale were not applicable to the execution of the Cornelia Brown judgment, the executions upon the judgments of Adason Kelsey, as administrator, etc., and of Keeler & Salisbury, or any of them. By the notice first published October 29, 1888, the sheriff advertised the real estate for sale on the 15th of December following. In that notice he stated that by virtue of several executions issued out of the supreme court, to him directed and delivered, against the property of Benjamin F. Yan Camp he had seized all the right, title, and interest which Yan Camp had in the real property described, on June 11, 1888, or at any time thereafter, and that he would expose such property for sale December 15, 1888, at the hour and place mentioned. By notice dated the latter day, he stated that the sale was postponed until February 15, 1889; and by further or supplementary notice, dated. December 18, 1888, by him subscribed, the sheriff stated that by virtue of several attachments and execn - tians issued out of the supreme court, wherein Orleans County National Bank and John G. Sawyer, respectively, were plaintiffs, and Yan Camp defendant, he had levied upon the right, title and interest which Yan Camp had in the property described in the foregoing notice (before mentioned), on the 14th day of June, 1888, or at any time thereafter, and would sell the property on February 15, 1889, and then stated the amounts of such judgments of the bank and Sawyer. The property was sold on that day, and, from the time of such postponement up to the time of the sale, all of those notices were published together, weekly. By the certificate of sale the sheriff certified that he sold the property by virtue of executions issued on judgments recovered against Yan Camp by Halloclc, Briggs, Buell, Bloss & Buell, Orleans County National Bank, and Sawyer, respectively, for the amounts, stated in the certificate. The attachments in behalf of those judgment creditors issued to the sheriff in the order they are above named, except as to those of the bank and Sawyer. They were issued to him at one and the same time. If the proceeds of the sale had been applied only to the payment of the executions in the sheriff’s hands at the time of the sale, they would have been fully satisfied, but such is not the judgment entered upon the direction of the trial court. The distribution of the proceeds directed by the judgment was that they be applied to the payment of the Brown judgment, and to those of thé attaching creditors, in the order in which the attachments had been delivered to the sheriff. The execution before mentioned, upon the Brown judgment, was issued pursuant to an order granting leave to issue it, and on or about the 1st day of December, 1888, was delivered to the sheriff ; and, although the original notice of sale had then been published for some weeks, the notice of postponement, with that following it, as we have seen, was duly published and given by the sheriff for at least six weeks after the receipt by him of such execution, and there is no available objection, founded upon the notice, why the sale may not properly have been made by virtue of that execution. There was none in the fact that the sheriff stated in the notice that he had seized the right, title, and interest which Van Camp had in the land on June 11,1888. That was the day on which the first attachment was delivered to him. Tiie lien of the Brown judgment was then prior to that of any of the attachments, and, so far as appears, there was no lien upon the premises intermediate the time of the entry of such judgment and June 11, 1888. The statute does not .require that the execution upon which a sale of real property is made be specified in the notice or certificate of sale. Code Civ. Proc. §§ 1434, 1438. If, as it thus far appears, the sale may properly have been made by virtue of the Brown execution, pursuant to the notice given by the sheriff of the sale, he was not at liberty to treat the sale as made only upon the other executions in his hands at the time of the sale. It must therefore, for aught that yet appears, be deemed to have been made by virtue of that execution, as well as of those mentioned in the certificate of sale.

The executions of the attaching creditors Keeler & Salisbury and Kelsey, as administrator, etc., were on the day of, and prior, to, the sale, withdrawn from the sheriff, and immediately after the sale, executions upon their judgments were placed in his hands. It is urged on the part of the appellants other than the plaintiff and Keeler & Salisbury that those creditors, by withdrawing the executions, denied to themselves the right to have their judgments paid from the proceeds of the sale. This is so, unless the levy of their attachments saves their right to share in such proceeds. The executions evidently were withdrawn to enable those creditors to redeem the property from the sale, if they should be so advised. This they could not do if their executions had remained in the sheriff’s hands at the time of the sale, as then the sale would have been made on them, as well as the others held by him. Code Civ. Proc. § 1457 ; Ex parte Paddock, 4 Hill, 544. But those whose executions were withdrawn were attaching creditors, and their attachment leins were prior to those of the other appellants; and assuming that the premises were sold upon the execution issued upon the Brown judgment,, which was a lien senior to that of any of the attachments, the sale was such as to vest title, when perfected in the purchaser, free from the lien of them, and it would seem that the proceeds, for the purposes of the lien of the attachments, became the substitute for the property upon which they were levied” else there would be no remedy for those attaching creditors whose executions were not in the sheriff's hands at the time of the sale, other than that of redemption. This would practically deny to them any benefit of the lien of their attacli - inents. The purpose of the levy of an attachment upon real property is to create a lien as of that time, and such is the effect of it; so that, when a judgment is recovered in the action, it, for the purpose of the execution of such lien, has relation to the time the attachment was levied, and, when the property is sold by the sheriff upon an execution issued on a judgment which is a prior lien to that of the attachment, the lien of the latter is available, in ■ its relative order, upon the proceeds of the sale, for the purpose of satisfying the judgment of the attaching creditor, or so much of it as the fund applicable to its payment will satisfy. This was the right of all those creditors, in the present case, whose attach- v merits were effectually levied upon the real property which was sold, whether or not their executions- were in the hands of the sheriff at the time of the sale. Code Civ. Proc. § 641. And therefore> the creditors whose executions were withdrawn from him, as before mentioned, were not, by the withdrawal of them, prejudiced in their right to take payment from the fund in the order of the lien of their attachments. For the purpose of obtaining such payment, executions in behalf of all the creditors to ■whom payment was, by the judgment herein, directed to be made, were issued, and delivered to the sheriff.

It is insisted that the judgment recovered by Cornelia Brown against Yan Camp was not effectual to support the execution issued upon it, or to require the payment of it by the sheriff,— because it had been set off against an equal amount of judgments of Yan Camp against her. This had been done by an order of the court, on his motion, but the order provided that such offset should not prejudice any lien which the defendants Keeler & Salisbury had upon the Brown judgment. They, as appears by the evidence, and facts found by the court, were attorneys and counselors at law, constituting the firm of Keeler & Salisbury, and as such had rendered services and paid out money for her in the action in which the judgment was recovered, and in other actions relating to the subject-matter of that action; and such services rendered and disbursements made by them for her, and at her re quest, were at least equal in valué and amount to that of such judgment. They may be regarded as the equitable assignees of the judgment. Haight v. Holcomb, 16 How. Pr. 160. And they liad the right to make it available, by process of execution, to satisfy their lien charged upon it Code Civ. Proc. § 66; Martin v. Hawks, 15 Johns. 405; McGregor v. Comstock, 28 N. Y. 240: Goodrich v. McDonald, 112 N. Y. 157; 20 St. Rep. 509. Those attorneys did not consent that any set-off be made of the judgment, to the prejudice of their lien, and it was preserved by the terms of the order; and no reason appears why the existence and extent of their lien was not properly established by evidence in this action in support of the execution in their behalf, as found by the trial court.

It is urged by the learned counsel for the appellants the bank and Sawyer that the cause of the Kelsey action was not such as to permit the issue in it of the attachment in his behalf. Prior to the time of the commencement of that action, Benjamin F. Van Camp liad been the executor of the last will and testament of Amos Kelsey, deceased, and, having failed to render his Account as such, and left the state under the .circumstances which he did, his letters testamentary were by the surrogate revoked, and Adason Kelsey was appointed administrator with the will annexed; and thereupon the latter, as such administrator, commenced his action against Van Camp, and caused an attachment therein tobe issued against his property. The complaint was of considerable length, and by it, among other things, the plaintiff alleged that Van Camp, having property and money of the Kelsey estate' in his hands, had been required and failed to render to the surrogate his account; that he had been removed from his position of trust, as executor, and the letters testamentary issued to him revoked; and that he had wrongfully and unlawfully disposed of and converted the said piroperty and money to his own use, to the damage of the estate of the said Amos Kelsey, in the sum of ten thousand dollars.” Judgment against him was demanded accordingly. The ground of the attachment, as recited in it, was that the action was brought to recover “ a sum of money only, as damages for wrongful conversion of personal property, as will more fully appear by the complaint, and that a cause of action exists against said defendant, in favor of said plaintiff, for the sum stated in said affidavit, and that the defendant Benjamin F. Van Camp has departed from the state of Hew York, where he has been a resident, and with the intent to cheat and defraud his creditors, and to avoid the service of a summons upon his himself." The complaint may import the purpose to recover against the defendant therein as for a conversion of personal property, and, as such the action came within those in which the statute permitted the issue of an attachment. But, in view of all the allegations of the complaint, such was not necessarily the nature of1 the action; nor was it of the recovery, as appears by the facts proven before the referee, and by his report, upon which the judgment was entered. If, as insisted on the part of those appellants, the action was for an accounting, as such, tire plaintiff in it was not entitled to an attachment, and none could issue, because it would not then come within the provisions of the statute permitting the issue of sucli process. Code Civ. Proc. § 635; Thorington v. Merrick, 101 N. Y. 5 ; Ackroyd v. Ackroyd, 20 How. Pr. 93. And it has been held in Morse v. Smith, 42 St. Rep. 168; 17 N. Y. Supp. 385, that unless special circumstances exist, to permit an action therefor, it will not be entertained, to require an executor or administrator to render an account, as for such purpose the jurisdiction of the surrogate’s court is deemed exclusive (Code Civ. Proc. § 2472, subd. 3), and was questioned in Hard v. Ashley, 117 N. Y. 606 ; 28 St. Rep. 601. The defendant in the Kelsey action had ceased to be executor at the time it was commenced. It was therefore not brought to require Van Camp to account, with a view to have him admister the estate which had come to him, of the decedent. Its purpose was to recover the amount of the property and moneys which he had, as executor, taken into his possession, so far as the same remained unadministered by him; and if, for the purpose of such remedy, special circumstances were required, they existed, in the fact that he had left the state? and was not subject to the direction of the surrogate’s .court. So far as related to the.money into which he had. converted the assets which came to him, he had only partially administered them, and the money, and no reason appears why he could not maintain an action to recover it. In Walton v. Walton, 1 Keyes, 15; Id., 4 Abb. Dec. 512; 2 Abb. Pr. (N. S.) 428, it was held that such an action was maintainable by an administrator de bonis non against the personal representative of an executor who had died” without having fully administered the assets which came to him ; and Judge Hogeboom there remarked that an action may be brought by the plaintiff, “ to recover the property, against any person in possession of it; trover or replevin if it exists in specie, * * * or assumpsit or other appropriate action, if it has been converted into money.” The action was not necessarily one for an accounting, but, in view of what followed, may be treated as an action to recover the amount of money which, in the execution of his trust, Van Camp had derived from the assets which came to him as such executor, and which he was liable to pay over to the plaintiff, his successor. And it seems that, before the plaintiff in that action proceeded to judgment, Van Camp returned to the state, and stipulated that on June 4, 1888, there was in his hands $1,840.31 in money, belonging to the Amos Kelsey estate; that such money was subject to the payment of $622.62 to Keeler & Salisbury for legal services, etc. And he stipulated that judgment might be taken in the Kelsey action against him for $1,840.31, and interest from June 11, 1888, with costs. The judgment was accordingly entered December 7, 1888. We are inclined to think that the action was well brought by Kelsey, as administrator, etc., against Van Camp, and that the alleged cause of action was such as to permit an attachment to issue.

The defendants Keeler & Salisbury, having commenced against Van Camp their action to recover for professional services preformed for him, in his matters as executor, etc., of Kelsey, deceased, procured a warrant of attachment to be issued therein to the sheriff June 13, 1888. It was levied upon the real and personal property of Van Camp. Afterwards, and before judgment, the attachment was levied upon certain accounts of Van Camp, against persons, for sums due from them to him, and thereafter the sum of $130.04 was collected by the sheriff on such accounts. Prior to the stipulation and judgment in the Kelsey action, and on December 3, 1888, Keeler & Salisbury recovered judgment in their action for $622.62 damages and $119.98 costs. Afterwards, an accounting was had by Yan Camp in the surrogate’s court, and on October 8, 1889, a decree was there made stating the amount of money, etc., of the Kelsey estate in his hands ; and, after referring to the recovery of the Kelsey judgment of December 7, 1888, against him, and the Keeler & Salisbury claim, for which he had not been credited, the decree directed that, out of the funds of the estate of the decedent, the administrator with the will annexed pay to Keeler & Salisbury §622.62 and interest, amounting together to $667.76. Thereafter, and on the same day, Adason Kelsey, as such administrator, assigned his judgment to the plaintiff in this action, and received, as the consideration of the assignment, the full amount of it. And thereupon he, by written instrument to that effect, as such administrator, certified and acknowledged that he had, by such assignment, realized upon the surrogate’s decree $2,186.66, being the amount of the judgment so assigned. On the same day, Keeler & Salisbury assigned to the administrator the damages in their judgment against Yan Camp, and received from him the amount of such damages. They reserved for themselves the costs on the judgment, with the right to enforce it in their behalf to that extent So that all that remained unsatisfied of the judgment recovered in their action was $119.98, the costs, and interest upon that sum. The liability of Yan Camp to Keeler & Salisbury was personal, notwithstanding the services were performed for him in his business as executor of Kelsey’s will. Mygatt v. Wilcox, 1 Lans. 55; 45 N. Y. 306; Bowman v. Tallman, 2 Rob. (N. Y.) 385. Ko reason now appears why the judgment, to the extent of and for the costs included in it, is not available to Keeler & Salisbury.

In respect to the proceeds of the accounts collected by the sheriff, and of the sale of the real property, the question arises as to the order in which the attaching creditors are entitled to payment,—whether in the order of the receipt of the attachments by the sheriff, or of the levy of them upon such property. The statute provides that, where two or more warrants of attachment against the same defendant are delivered to the sheriff to be executed, their respective preferences are the same as where two or more executions against the property of the same defendant are delivered to the sheriff. Code Civ. .Pro., § 697. And, as to executions, it is provided that the one first delivered to the sheriff to be executed has preference, notwithstanding the levy is first made by virtue of an execution subsequently delivered to him. Id. 1406. Such is the rule applicable to personal property subject to levy of executions. Camp v. Chamberlain, 5 Denio, 198; Peck v. Tiffany, 2 N. Y. 451; Pach v. Gilbert, 124 N. Y. 612 ; 37 St. Rep. 218. But, as the sheriff cannot take real property into his custody, it is necessary to constitute the levy of an attachment upon it, that he file with the clerk of the county in which it is situated a notice of the attachment, stating the names of the parties to the action, the amount of the plaintiff’s claim, as stated in the process, and a description of the property levied upon.—the notice to be also subscribed bv the plaintiff’s attorney. Code Civ. Proc., § 649. The levy of an attachment is essential to make it available as a lien, or to create by it security for payment of the judgment which may follow. Anthony v. Wood, 96 N. Y. 180; Warner v. Fourth Nat. Bank, 115 N. Y. 251; 26 St. Rep. 213. And it is the duty of the sheriff to whom an attachment is delivered to immediately levy it upon the property, personal and real, of the defendant, sufficient to satisfy the demand, if it can be found. Code Civ. Proc., § 644. He is thus required to levy them, if there be more than one, in the order in which they are received by him; and, for his neglect to levy such process, he 'may be liable to the plaintiff for the consequences. Lewis v. Douglass, 53 Hun, 587 ; 25 St. Rep. 240. In view of the duty imposed upon the officer in levying attachments, it was evidently contemplated by the statute that they would be levied in the order of their receipt by him, and for that reason there is no distinction in that respect made in its application to personal and real property, nor is our attention called to any case in which any such distinction is observed, since the repeal of the provisions of the Revised Statutes relating to attachments against absconding, etc., debtors. The provisions of § 697 of the Code, since then, may properly be applicable to attachments levied upon both kinds of property; and therefore it would seem that, in cases where attachments are issued to the same officer, the rule of preference relating to executions levied upon personal property is applicable to attachments levied upon property real as well as personal. Nnder the present statute, we think such must be the rule of distribution of the proceeds of the sale of real property among the attaching creditors who proceed to judgment, and it seems alike reasonable and just.- In that view, the sale upon executions issued upon some or one of the judgments of the attaching creditors gives them no advantage over the others of them, which the lien of their attachments does not give them. Russell v. Gibbs, 5 Cow. 390 ; Rowe v. Richardson, 5 Barb. 385. Since a judgment is a lien upon the real property of a judgment debtor, no levy of execution issued upon it is made on such property. But if a levy were necessary, and the land charged only by it, as has been—-and probably yet is—the case in some of the states, the rule applicable to levy and sale upon executions of real and personal property would be substantially the same. Catlin v. Jackson, 8 Johns. 406. The execution of the lien of an attachment is contingent upon the recovery of a judgment' in the action in which it is issued. Then it may be executed in the manner provided by the statute. Code Civ. Proc., § 1370. And, as an actual levy is necessary to create the lien of an attachment upon property, it would seem that, when several of them are levied upon the same real property of a defendant, the order of preference or priority would be the same, and founded upon the like reason, as that applicableto levy of attachments on his personal property, in the absence of any different rule upon the subject There seems to be none. And therefore the liens of the attachments levied upon the real property of Yan Camp are entitled tó priority in the order in which they were delivered to the sheriff. Learned v. Vandenburgh, 7 How. Pr. 379 ; 8 How. Pr. 77; Yale v. Demick, 20 How. Pr. 430; Yale v. Matthews, 12 Abb. Pr. 379. These views are in accord with the direction in the judgment for the distribution of the fund among the attaching creditors other than the defendant Bruner, to whom the payment before mentioned was made upon an execution irregular on its face, and void for the purposes of collecting anything from the fund in question ; and, for want of an affidavit to justify the issuance of the Bruner attachment, the levy of it was ineffectual to support a lien of it upon the property. It was determined by the trial court to be void, and so declared by the judgment.

A question is raised about the disposition of the proceeds received by the sheriff of the Van Camp accounts. As no attachment, other than that of Keeler & Salisbury, was levied upon them, it is not seen that any creditor, other than they, obtained any lien upon the accounts by them attached. Those upon which their attachment was levied produced only $130.04; which amount was sufficient to pay their judgment of $119.98, and they were entitled to its payment from the proceeds of the accounts upon which their attachment was levied. The assignment By Van Gamp to Keeler & Salisbury of the proceeds of other of his accounts collected by the sheriff was not effectual to transfer to them title of such proceeds, to the prejudice of the attaching creditors. When payment of the accounts was made by the debtors to the sheriff, the amount so received by him became charged witli the lien of the attachments in his hands, in the order of the delivery of them to him. In view of the circumstances, the conclusion of the trial court that the sheriff is not chargeable with any greater rate or amount of interest on the fund than that realized by him from it was fairly justified, and such conclusion is sustained. The defendant Orleans County National Bank, having recovered a judgment against Van Gamp, September 14, 1889, by default, upon the service of the summons by publication, after-wards, on November 16th, commenced against him an action upon the same claim, by the personal service upon him, in this state, of the summons and complaint, and on December 7, ¿889, recovered a judgment therein by default. It does not appear that any of the parties, other than the judgment debtor, could be prejudiced by the last mentioned judgment. And whether or not it was, by reason of the former judgment for the same cause, rendered invalid, is a question which none of the parties, other than he, could legitimately raise for consideration. He does not seek to attack it in this action. If the first judgment was effectual to charge the defendant in personam, the other is useless. But if, from any cause, it is not so, it may properly stand. Therefore, without considering the question upon the merits, the conclusion of the trial court that the judgment was void, as well as the judgment tq that effect, is not sustained.

Those views lead to the conclusion that the payment by the defendant Searle, as sheriff, to the defendant Bruner, of $96.65, was made without due authority, and he was not justified in making it; that the defendants Keeler & Salisbury were entitled to priority in payment upon their judgment, of or from the proceeds, amounting to $130.04, of the accounts upon which their attachment was levied; and that the second judgment above mentioned, oí the Orleans County National Bank against Yau Camp, is here treated as valid. And so far as, by the judgment appealed from, it is otherwise determined, it should be reversed, and in other respects affirmed.

The judgment should be thus modified without costs to any party.

All concur.


text:
    Sarah Brady, App’lt, v. Industrial Benefit Association, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    1. Trial—Direction of verdict.
    Where the evidence of the plaintiff is not so inconsistent with that of the defendant as to raise a question of fact for the jury upon the issue, an exception to the direction of a verdict for defendant is not well taken.
    2. New trial—Newly discovered evidence.
    Newly discovered evidence, for the purpose of discrediting a witness, is not ground for granting new trial.
    Motion for new trial on exceptions ordered to be heard at general term in the first instance, and from an order denying a motion for a new trial on the ground of newly discovered evidence.

      Amasa J. Parker, for app’lt ; Walter S. MacGregor, for resp’t.
   Bradley, J.

—The action was brought by the plaintiff as beneficiary of a certificate of membership or policy issued by the defendant to Millard Fiero, October 13, 1890. He died April 12, 1892. The statements and representations of the assumed contained in his application of date October 10, 1890, were, by the. terms of the certificate and the by-laws of the defendant made the basis and part of the contract of the insurance, and were warranties on his part. Among the interrogatories, and his answers thereto, contained in the application, were the following: Q. Are you in good health? A. Good. Q. Are you usually in good health? A. Yes. Q. Are you free from every predisposition to disease? A. Yes. Q. How long since you required the services of a physician ? For what disease or trouble ? A. Never seriously sick. Q. Have you had, during the past five years, or are you subject to, any of the following diseases, or any not named herein : Spitting of blood (following with several other specified affliótions)? If yes, state fully. A. No. Q. Are you aware that, if any fraudulent or untrue answers have been made, or if any facts which should have been stated have been suppressed, that your certificate is null and void ? A. Yes.

By evidence on the part of the defendant it appeared that in 1888, and from time to time thereafter, Fiero was sick; that in the spring of 1889 he was so afflicted with hemorrhages of the lungs that blood came from the mouth quite freely, and his condition was feeble. And witnesses testified that in 1888 they talked with him about his sickness, and that he stated to them that he was subject to hemorrhages of the lungs. The facts thus proved constituted a breach of the warranty which was made the basis of the contract of insurance, and the truth of which was the condition upon which the validity of the defendant’s certificate or policy was dependent. Dwight v. Germania L. Ins. Co., 103 N. Y. 341; 3 St. Rep. 115; Clemans v. Supreme Assembly, 131 N. Y. 485 ; 43 St. Rep. 571; Boland v. Ind. Ben. Association, 74 Hun, 385; 56 St. Rep. 382. There was some evidence on the part of the plaintiff to the effect that the witnesses who gave it had seen Fiero frequently or occasionally in the years before mentioned and in 1890, prior to the time the certificate was issued; that he appeared to be physically in good health ; and that they had not known of his having been afflicted with hemorrhage of the lungs. It is not seen that this evidence was so inconsistent with that on the part of the defendant as to raise a question of fact for the jury upon the issue as to the truth of the representations of the assured in his application. The exception to the direction of a verdict for the defendant was not well taken. For do we find any error prejudicial to the plaintiff in any other ruling at the trial.

The further evidence treated as newly discovered, upon which the plaintiff founds her application for a new trial, so far as it relates to the merits, is similar to that given on her part on the trial, and is in that sense cumulative. It would not necessarily be contradictory of that of the specific facts testified to by the defendant’s witnesses, and. assuming that the latter are entitled to credit, it would add substantially nothing more in support of the action; and unless it can be seen that the newly discovered evidence has such importance as to permit the supposition that it may produce a result different from that of the trial previously had, a new trial on that ground ought not to be granted. Schultz v. Third Av. Railroad Co., 47 N. Y. Supr. Ct. R. 285; Jackson v. Town of Ft. Covington, 40 St. Rep. 67; 15 N. Y. Supp. 793. The plaintiff bases her motion partly upon the statement of a purpose to produce evidence by way of impeachment of the credibility of one of the defendant’s witnesses on the trial, and presents affidavits of persons to the effect that such witness is not entitled to credit. As a general rule, newly discovered evidence, sought for the purpose of discrediting a witness, is not a ground for granting a new trial. Carpenter v. Coe, 67 Barb. 411; Starin v. Kelly, 47 N. Y. Supr. Ct. R. 588. It appears that the action has been twice tried. The first trial was in May, 1893, and the second trial was in October following. The person whose credibility the plaintiff seeks to impeach was a witness on both trials, and no evidence was offered on either to impeach the veracity of such witness. If any one of three of the witnesses who testified on the part of the defendant upon the trial is taken as true, it is not seen how the plaintiff could recover on a new trial. There is no well-founded ground for granting it.

The motion for a new trial should be denied, and the order appealed from affirmed. All concur.


text:
    Julia Ward, as Administratrix, etc., App’lt, v. New York and Harlem Railroad Company, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed June 18, 1894.)

    1. Negligence—Stbeet bailboads.
    The driver of a street car must give the driver of a vehicle a reasonable opportunity to get ofi the track, and not run him down.
    2, Sajie.
    The negligence of the company, in an action for injuries caused by collision with a street car, was held, in this ca^e, to be a question for the jury-
    Appeal from a judgment dismissing the complaint.

      Grout, De Fere & Mayer, for app’lt; Rodman & Cogswell, for resp’t.
   Cullen, J.

—This is an appeal from a judgment in favor of the defendant entered on a nonsuit at circuit. The action was for causing the death of plaintiff’s intestate. The complaint was dismissed at the close of the whole evidence. We think this disposition of the case was erroneous. The deceased was killed by a collision on Centre street, New York, between a wagon he was driving and one of the defendant’s cars. There were but two witnesses called to testify as to the occurrence,—one for the plaintiff (a bystander), and the other for the defendant (the driver of the car). According to the testimony of the first witness, the vehicle of the deceased was in the railroad tracks, about 10 feet in advance of the car, both proceeding in the same direction. The deceased started to turn his wagon out of the tracks, but before he had wholly accomplished this object the car collided with his rear wheels. According to the evidence of the driver, the wagon of deceased was alongside of the curb, and between the tracks and the sidewalk; and as the car was proceeding on its route the vehicle was suddenly driven across the front of the car, the driver in vain endeavoring to stop the car in time to avoid the collision. If the driver’s testimony be true, there was no negligence on the part of the defendant. But, if the testimony of the plaintiff’s witness be credited,—that the deceased was driving in the track, —there was a question of negligence on defendant’s part, to be submitted to the jury. The right of the defendant to the path of its tracks was only paramount, not exclusive. Fleckenstein v. D. D., E. B. & B. Railroad Co., 105 N. Y. 655; 8 St. Rep. 82. Vehicles traveling the streets had the right to drive along the tracks ; respecting, however, the paramount right of the railroad cars, and using reasonable diligence to turn out of their way. The driver of the car was bound to give the driver of the vehicle a reasonable opportunity to get off the track, and not to run him down. If this, therefore, was the case of a “rear-end” collision, it was certainly for the jury.

The defendant contends that the testimony of the driver of the car that the deceased was driving across the front of the car was uncontradicted. We think not. The driver testified that he saw the wagon of deceased 25 feet in front of the car. The bystander says that he saw the deceased driving in the line of the car, 10 feet in front of it. The evidence of the driver, therefore, goes back of the time when the other witness first observed the deceased ; but it might very well be argued that if the deceased started to cross in front of the car, at a distance of 25 feet away, he could not be found, at a distance of 10 feet away, driving in the line of the track. The evidence presented a question of fact,—whether the collision occurred as the deceased was driving across the track, or when he was turning out of the tracks.

The judgment appealed from should be reversed, and a new trial ordered; costs to abide the event.

All concur.


author: Per Curiam.

text:
    Patrick Ford, Resp’t, v. Bridget McCarthy et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed May 18, 1894.)

    1. Mortgage—Delivery.
    Record of mortgage, through the act of the mortgagor, is prima fade evidence of delivery.
    2. Same—Proof of acceptance.
    In such case, an action to foreclose the mortgage is proof of acceptance of the constructive delivery evidenced by the record.
    Appeal from a judgment in favor of plaintiff.
    The opinion of Mr. Justice Vann at special term is as follows:
    The question at issue between the parties is whether the mortgage in controversy was ever delivered. It appears from the evidence that on the 12th day of March, 1878, the defendant being indebted to the plaintiff in the sum of $150 for certain property by him sold to her, gave him her promissory note for that amount, dated on that day and payable nine months thereafter. This note matured, but was not paid, and on the 21st of October. 1881, the defendant executed and acknowledged the mortgage in question, which is'conditioned to pay said note and interest in one year. Flo bond accompanied the mortgage. At the time the mortgage was executed, the plaintiff was living in the west, so that personal delivery was not made, but the defendant Bridget McCarthy, through her husband and agent, Michael Me Carthy, at once caused the same to be recorded, and after the record thereof Mr. Me Carthy procured it from the clerk, and has had it in his possession ever since. The plaintiff never had the manual possession of the mortgage, but learned of its existence shortly after it was executed. Upon the trial the plaintiff read in evidence the record of the mortgage, but gave no evidence of a direct delivery thereof. The defendants gave evidence tending to show that a certain judgment had been entered against them in justice’s court by one of their creditors in violation of an agreement and after settlement of the claim upon whicli suit was brought; that upon learning of this fact Mr. Me Carthy procured his wife to execute the mortgage in question and place it upon record, in order to prevent the collection of that judgment, and that it was so placed, upon record for the plaintiff. As the mortgage was recorded through the act of the defendants, the record thereof was prima facie evidence of a delivery. Van Valen v. Schermerhom, 22 How. Pr. 416. The burden of proof was, therefore, cast upon the defendants to show that there was no delivery, either actual or constructive. I am not satisfied that this burden of proof has been successfully met. The main fact relied upon to show that there was no delivery tended to show that there was a delivery; for how could collection of the judgment be prevented, except by an effective record of the mortgage for the use of the plaintiff, which is equivalent to an actual delivery ? Otherwise, the filing of a transcript of the judgment would make it a prior lien, for until there was a delivery there was no mortgage, except in form. It was not necessary that the delivery should be to one authorized to accept for the plaintiff, as he could accept at any time upon learning of the facts. Munoz v. Wilson, 111 N. Y. 295; 19 St. Rep. 372. Unless it was intended to record the mortgage as an operative obligation, the act was meaningless, and, if it was delivered for record with that intent, it was an effective delivery for all purposes. Moreover, Mr. McCarthy testified very candidly that he intended to put it on record for the plaintiff, and the authorities hold that when a mortgagor causes a mortgage to be recorded for the benefit of the mortgagee, although without his knowledge or acceptance at the time, it is a valid delivery, and the mortgagee can accept the same whenever he chooses after learning the facts. The bringing of an action to foreclose is sufficient evidence of acceptance, but in this case there was other evidence upon the subject. Findings may be prepared, and the usual decree of foreclosure entered, with costs.

      M. M. Walters, for app’lts; P. J. Ryan, for resp’t.
   Per Curiam.

—Judgment affirmed, with costs, upon the opinion of Vann, J., delivered at special term.


author: Haight, J.

text:
    Johnston W. Beacon, App’lt, v. Lucius Rogers, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Teial—Dismissal op action.
    The enticing of the defendant within the jurisdiction of the court is ground for setting aside the service of summons and complaint, hut not for dismissing the action.
    Appeal from a judgment entered on an order vacating and setting aside the service of the summons and complaint and order of arrest on defendant, and dismissing the action.

      Crowley & Riley, for app’lt; William H. Henderson, for resp’t.
   Haight, J.

—The appeals from the judgment and from the order were separately taken, and we have been furnished an appeal book upon each appeal. There was but one action, and both appeals are in that action, and we shall consequently consider them together. The papers show that the defendant was a resident of Smethport, McKean county, Pa.; that he was enticed within this state for the purpose of procuring his arrest and the service of the summons and complaint. The order appealed from properly vacated and set aside the service of the summons, as well as the service of the order of arrest, but it should not have dismissed the action with costs. The summons was properly issued to the sheriff. The order of arrest, we must assume, was obtained upon sufficient papers, and was properly delivered to the sheriff. The service only was improper, because of the enticement of the defendant within the jurisdiction of this court. In Higgins v. Dewey, 39 St. Rep. 94; 14 N. Y. Supp. 894; and Id., 34 St. Rep. 692 ; 13 N. Y. Supp. 570, the order set aside the service, and vacated the order of arrest. On appeal the order was reversed, in so far as it vacated the order of arrest. In Metcalf v. Clark, 41 Barb. 45, the special term set aside the summons. On review it was held that the service only should have been set aside. The order contained no direction for the entry of final judgment, and we think the judgment entered was irregular, and that it could have been set aside on motion. The appeal from the order was from the whole thereof. The appellant only succeeds in part. No costs should therefore be allowed. The appeal from the judgment -should be dismissed, and the judgment vacated, without costs to either party. The appeal from the order should be modified by striking therefrom the clause “and the said action is dismissed, with costs,” and, as so modified, affirmed, without costs of this appeal to either party. All concur.


text:
    William T. Knorr, App’lt, v. New York State Mutual Benefit Association, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    1. Attachment—Fraudulent disposition.
    The application, by an insurance company, of a fund to subsequent death benefits to the exclusion of plaintiff's claim, is not a fraudulent disposition of its property.
    3. Same—Vacation—Interest.
    When affidavit by receiver of a corporation to vacate an attachment against it shows an interest in the attached property.
    3. Pleadinq—Complaint—Insurance.
    The complaint in an action by an administrator on policy payable to the wife of the insured or, in case she does not survive him, to his administrator, must state that the insured survived his wife.
    4. Same—Objections—Waiver.
    The receiver of a corporation is not bound by a waiver of objections by the corporation, to a complaint against it.
    Appeal from an order vacating a warrant of attachment.

      William H. Henderson, for app’lt; Louis Marshall, for resp’t.
   Haight, J.

—The warrant was issued upon the ground that the defendant had assigned, disposed of, secreted, and is about to assign, dispose of, and secrete property with intent to defraud its creditors. The motion to vacate was made by one David McClure, as receiver of the defendant, appointed by the court in an action prosecuted by the people of the state to dissolved and wind up the affairs of the corporation, aiid was based upon the papers upon which the warrant was granted. When the motion was brought to a hearing, the appellant objected, upon the ground that the moving party had failed to show ,by any legal proof that there had not been an actual application of the attached property, or the proceeds thereof, to the payment of the judgment in the action prior to making the motion, and that lie had failed to show that he had any interest in or lien upon the property attached under the warrant. These objections were overruled, and, we think properly; for it appeared by the affidavit of McClure that he was appointed temporary receiver on the 12th day of January, 1893, by the court in the action referred to ; that he had duly qualified, by giving the security required by the order, and filing the same in the office of the clerk, with the oath of office required and that he had ever since acted, and was still acting, as such receiver. Attached thereto was a copy of the order of the court appointing him such receiver. It also appears by the affidavit of Horan that nothing as yet had been collected by the plaintiff under the attachment, and from the affidavit of Marshall that a motion had been made by the plaintiff for leave to apply the property attached in payment of his judgment, upon which an order was issued staying proceedings until the hearing and determination of the motion. It was competent to show these facts by affidavit, provided they were within the personal knowledge of the affiants. Delmore v. Owen, 44 Hun, 296; 7 St. Rep. 584; affirmed, 110 N. Y. 679 ; 18 St. Rep. 1030; Tim v. Smith, 93 N. Y. 87.

It is also contended that the moving party was guilty of loches. Upon this subject the parties were permitted to present their affidavits, and although considerable time had elapsed after McClure was appointed receiver, under the facts stated by him, we think, there was proper excuse for the delay. We are thus brought to a consideration of the papers upon which the warrant was issued. It appears to have been issued upon the complaint, the affidavit of the plaintiff and of Inman, his attorney. It appears' that on the 20th day of June, 1881, Charles Knorr, the plaintiff’s testator, joined the defendant, and had issued to him a certificate of membership in class A, for $2,000, numbered 165, in which the defendant certified that: This membership entitles his wife, Louisa, if she survive him,—otherwise his executor .or administrator,—upon the death of said Charles Knorr, to such an amount as will equal one dollar collected from each member upon the assessment made for the payment thereof, not, however, to exceed the sum of $2,000, said amount payable within 60 days after satisfactory proof of said death has been received by the association.”

The plaintiff alleges that Charles Knorr died on the 31st day of January, 1892, leaving a last will and testament, which has 'been duly'admitted to probate, and that the plaintiff had been duly appointed administrator with the will annexed by the surrogate’s court of Cattaraugus county. Neither the complaint nor the affidavits make any mention of the wife of the testator; so we are not advised as to whether she- is living or dead. If she survived the testator, the money due upon the certificate from the defendant belonged to her, and not to the executor or administrator of the testator. In this respect it is apparent that there was a failure to state a good cause of action. But it may be said that the defendant has waived this defect in the papers by resting upon its rights, and permitting the plaintiff to enter judgment. Possibly, this may be true as to the defendant; but McClure, as receiver, represents, not only the defendant, but the creditors as well, and, as such, we see no reason why he may not avail himself of the defect unless he has waived the same because of his loches. But assuming the papers to be sufficient so far as this question is concerned, we find further trouble in sustaining the attachment. As we have seen, it was issued upon the ground that the defendant has assigned, disposed of, and secreted, and is about to assign, dispose of, and secrete, property with the intent to defraud its creditors. It appears from the affidavits upon which the warrant was issued that the plaintiff presented to the defendfendant proofs of death; that they were accepted, 'and an assessment was ordered under date of July 1, 1892, for the plaintiff's claim ; and that the full amount was paid into the office of said company. It further appears from the statement of the officers of the defendant to the plaintiff’s attorney that, instead of pajdng over the money to the plaintiff, the same was paid out upon death claims of members resident in the city of Syracuse and vicinity, whose claims had matured subsequently to that of the plaintiff. Was this a disposing of or secreting the property of the corporation with intent to defraud creditors? We think not. If the money collected upon the assessment belonged to the corporation, it appears that it was applied to the payment of its debts. Its creditors, therefore, could not have been defrauded. If the money collected upon the assessment belonged to the plaintiff, as claimed, and the officers received it in trust for him, and diverted or converted it, the plaintiff may have a remedy against them for so doing; but we do not understand that he would be entitled to an attachment against the corporation, upon the grounds stated, by reason of such conversion by the. officers thereof. Whether the money so collected upon the assessment belonged to the plaintiff or to the corporation it is not necessary to now determine, for in neither event could an attachment issue upon the grounds stated in it. The order appealed from should be affirmed, with $10 costs and disbursements. All concur.