author: McAdam, Ch. J.

text:
    Henry C. Bailey v. The Williams Manufacturing Company.

      (City Court of New York, Special Term,

      Filed April 20, 1887.)

    Inspection op books ob papers in possession op adverse party.
    Inspection will not be ordered unless the court is satisfied that the discovery is pertinent to the claim or defense of the party malting the application. It is not a mere curative remedy to prevent surprise at the trial, for the inspection must be material and necessary in order to justify the court in directing it. Knowledge acquired by the executive officers of a corporation is imputed to the coiporation, as notice to an agent in the transaction is notice to the principal.
    Motion to compel plaintiff to permit an inspection of the special contract sued upon.

      Mathews & Smith, for motion; JohnL. N. Hunt, opposed.
   McAdam, Ch. J.

The complaint declares upon an express contract in writing executed by the defendant whereby, etc. The answer sworn to fifteen months ago positively denies the execution of any contract by the defendant. The defendant in view of this pleading seeks an inspection of the contract which the plaintiff • said it executed; and it says it did not execute. It is supposed to know as much about the execution of the instrument as the plaintiff, for unless executed by some duly authorized officer of the defendant, it is not the contract of the defendant In order to get the contract in evidence the plaintiff must first prove that the contract was executed by some officer of the defendant having express authority to bind the corporation, or by some officer whose official position clothed him with implied authority to execute it on its behalf. Is the defendant, under the circumstances, entitled to the inspection sought for? The inspection is desired to enable the defendant to prepare for trial, and the provisions of the Code have this end in view. Gelston v. Marshall, 6 How. Pr., 398.

Inspection will not be ordered unless the court is satisfied that the discovery is pertinent and material to the claim or defense of the party making the application 2 Wait’s Pr., 531. It is not a mere curative remedy to prevent surprise at the trial, for the inspection must be material and necessary in order to justify the court in directing it.

In James v. Coxe (3 How. N. S., 36), this court held, in an action for rent wherein .the defendant set up a subsequent agreement, modifying the original lease, that the plaintiff could not by motion compel the discovery of a correspóndenos calculated to prove or disprove the defense, so that the plaintiff might determine its legal effect before trial. See also Sanger v. Seymour, 4 N. Y. State Rep., 451, 452.

The defendant, being a corporation, can act only through agents known as executive officers, and knowledge acquired by any of such agents is knowledge imputed to the corporation (See Bank v. Davis 2 Hill, 461), as notice to an agent in the transaction is notice to the principal. Angell and Ames on Corp. § 305. If one of the officers of the defendant executed the special contract, it has, in contemplation of law, knowledge of the fact.

It assumed to act upon its knowledge when it denied under oath the execution of the special contract. It must stand on that ground of defense now. If the corporation had any doubt upon the subject, it should have applied for a discovery before joining issue, so as to be able to decide whether to admit or deny the execution of the instrument. It did not deem this precautionary step necessary, and contented itself by an unqualified denial under oath. The defendant said, in effect, “I made no such contract.” If this be true, it is a perfect defense as the pleadings now stand. The defendant has adopted this theory, and interposed it by a sworn plea, should not be permitted to inspect that which can, under its plea, impose no obligation upon it. It is practically asking to inspect a paper it never executed. Such an inspection can hardly be termed necessary -and material to the defense. But the defendant may say the inspection may be necessary to prevent surprise at the trial. It may turn out that some former officer of the -corporation executed the contract, or some present officer may have executed it in excess of his authority. The answer to this suggestion is that inspection is not allowed for such experimental or precautionary purposes. Unless the person who executes the contract was an officer at the time, the contract is not admissible in evidence. The onus of proving the official position and power of the person executing the contract is on the plaintiff, unless proof of the position alone carries implied-power with it. The defendant has its by-laws and minute-book to prove who its officers are, with the power and duties belonging to each, and is able to refute in a sort of official way any untrue assertion the plaintiff may advance concerning the execution of the contract , by any one assuming to be an officer of the defendant, and attempting to act as the defendant’s authorized agent. The defendant denies the rendition of any services under the alleged, contract, so that its terms and provisions cannot be of any consequence to it. Upon the entire case, and chiefly on the ground that the inspection applied for is not material or necessary to the maintenance of the defendant’s defense, or to enable it to properly meet the issue presented by the pleadings, the application will be denied, but without costs.


source: Caselaw Access Project

author: Ehrlich. J.

license: Public Domain

text:
    James Lynch, Resp’t, v. Henry J. Walsh, App’lt.

      (City Court of New York, General Term,

      Filed April, 1887.)

    1. Pleading—When denial in answer irrelevant.
    A denial that the defendant is indebted to the plaintiff in an action nr the sum claimed in the first cause of action in the complaint is irrelevant, and where it forms a part of an entire defense should be stricken out as-such, and cannot be reached by demurrer.
    2. Same—Discretion of court as to pleadings.
    Where an answer in an action for rent admitted that the defendant hired’ the premises and occupied the same for some time but denied having hired and occupied the same for the time mentioned in the complaint, the discretion of the court is properly exercised in requiring the defendant to-make more definite and certain the expression “some time;” and in case he fails to do so, the court has jurisdiction to make an order precluding the defendant from giving evidence upon the trial “ of concerning, contradicting or tending to contradict” the allegation of the complaint as to the time he occupied the premises therein described.
    Appeal from order striking out matter from defendant’s answer as irrevelant, and requiring him to make such answer more definite and certain, and from order .precluding the defendant from giving evidence of the defense he-was required to make more definite and certain on account of his failure so to do.
    The first cause of action set out in the complaint was for rent of certain premises at No. 80 West Broadway, in the city of New York, which, it alleged, the defendant, prior to September 1, 1882, entered into the occupany of and continued to occupy, hold, use and enjoy up to and including the month of March, 1885.
    The first paragraph of the defendant’s answer was as. follows:

      “First. He denies being indebted to the plaintiff in the sum of $240, claimed in the first paragraph or cause of action of the complaint. He admits having hired the-premises for six dollars per month, and having occupied the same for some time; but denies having hired and occupied the said premises for the'time in the complaint mentioned; and, except as admitted or denied, denies the other allegations of said first cause of action.”
    In the sixth paragraph of the answer, che defendant denied each and every other allegation in the complaint except those before admitted or denied in the answer. On November 23, the order was made upon motion after argument, by the special term of the city court of New York, striking out the words “he denies being indebted to the plaintiff in the sum of $240, claimed in the paragraph or cause of action in the complaint,” as irrelevant and redundant, and requiring the defendant to make his answer more-definite and certain, by stating the time he occupied the? premises described in the first cause of action contained in the complaint. The defendant failed to make his answer more definite and certain, and, on December 29, 1886, an order was entered precluding the defendant from giving-evidence upon the trial “of concerning, contradicting or tending to contradict ” the allegation of the complaint that the defendant occupied the premises therein described prior to September 1, 1882, to March 31, 1885.

      Thomas Brennan, for def’t and app’lt; Henry Huffman■ Browne, for pl’ff and resp’t.
   Ehrlich. J.

The order dated December 29, 1886, is conditional only. The court below had the jurisdiction to make such an order upon the refusal or failure of defendant to comply with its former order; and I am inclined to the opinion, therefore, that in the present case, unless the first order should be found erroneous, both orders should be-sustained.

The matter objected to as irrelevant, was properly stricken out as such, for the reason that it stated no issuable fact in an issuable form; the same being alleged as an entire defense, could not be reached by demurrer, and the denial contained in the sixth clause of the answer afforded ample protection to the defendant.

It is quite clear that the discretion of the court below was properly exercised in requiring the defendant to make more definite the expression “sometime,” referring to his-admission of occupancy of the premises, for the rent of which the plaintiff seeks to recover.

The order should be affirmed, with costs.

Hall, J., concurs.


author: MoAdam, Ch. J

text:
    William Parry, Resp’t, v. The American Opera Co., App’lt.

      (City Court of New York, General Term,

      Filed May, 1887.)

    Master and servant—Wrongful discharge—Action.
    An employee who is paid up to the time of his discharge has but one-cause of action for the breach which accrues to him at the time of the wrongful discharge. In this action he is entitled to recover “ for the loss, or injury occasioned ” up to the time of trial. One recovery is a bar to any other growing out of the breach.
    Appeal from judgment entered on verdict directed in favor of the plaintiff at the trial term.

      Eaton & Lewis, for app’lt; W. W. Badger, for resp’t.
   MoAdam, Ch. J

Services were actually rendered under the contract of employment until December 11, 1836, to which time salary was paid. The plaintiff was on that day discharged, by means of which he was prevented from rendering any further services under his contract: The plaintiff’s appropriate remedy under such circumstances was an action for wrongful discharge founded on the breach by the defendant (Moody v. Leverich, 4 Daly, 408; Howard v. Daly, 61 N. Y., 362), in which form of action he is entitled to recover “for the loss or injury occasioned” up to the time of trial. Bruel v. Colell, 1 City Ct. R., 308; Everson v. Powers, 89 N. Y., 527. The cause of action arose at the time of the wrongful discharge, and there can be but one recovery for the breach, although the services (if they had been rendered) were to be paid for in weekly installments. One action is sufficiently comprehensive to embrace all the damages suffered, and the law will not permit the cause of action to be split up into parts so as to permit of a number of suits for substantially the same cause. The plaintiff herein recovered a judgment on the. contract for the loss from December 11, 1886 (the day of the discharge), up till December 25, 1886. This recovery was founded on the breach, because it is conceded by the printed case that no services whatever were rendered during this period. The judgment so recovered is a complete bar to any further recovery founded on the same breach—that is, the wrongful discharge. See cases before cited, and Smith v. Dittenhoefer (1 City Ct. R., 143). The request to direct a verdict for the defendant should have been granted. It was error .to have directed a verdict for the plaintiff. For this error the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Browne and Hall, JJ., concur.


author: Hyatt, J.

text:
    Samuel Barth and Philip Strauss, Resp’ts, v. Gustave Amberg and Robert Burckhardt, App’lt.

      (City Court of New York, General Term,

      Filed May 27, 1887.)

    Pkactice—Judgment—When given against one of sevekal defendants—Code Crv. Pko., § 1,204.
    Where a joint contract was set forth in the complaint as the ground of the action against the defendants as joint debtors. Held, That the court at the trial could still award judgment in favor of the plaintiff against one of the defendants, if as a matter of fact, it was made to appear that such one was the only person liable to the plaintiff. Code Civ. Pro., § 1,204.
    Appeal from a judgment entered upon the verdict of a jury in favor of the plaintiffs against the defendant Amberg.

      Douglas A. Levien, Jr., for resp’t; William N. Loew, for app’lt, Amberg.
   Hyatt, J.

The complaint charges that the plaintiffs sold and delivered to the defendants at their request certain goods. The defendant Amberg denies this and sets up a misjoinder of parties defendant.

The motion to dismiss the complaint, upon the ground that the plaintiff on the trial did not establish that the goods were sold to the defendants jointly was properly denied.

Section 1204 of the Code of Civil Procedure allows judgment to be given for or against one or more plaintiffs, and for or against one or more defendants.

Assuming that a joint contract has been set forth in the complaint as the ground of the action against the defendants as joint debtors, the court at the trial can still award judgment in favor of the plaintiff against one of the defendants, if, as matter of fact, it shall be made to appear that such one is the only person liable to the plaintiff. Clegg v. Cramer, 66 How., 411; 32 Hun, 163.

The real question involved in the action was clearly presented by the court to the jury for their consideration. They were instructed that if they found that Burckhardt was the duly authorized agent of the defendant Am-berg, their verdict must be for the plaintiff, against the defendant Amberg; they so found.

We do not find in the record any error which will justify a new trial.

The judgment must be affirmed, with costs.

MoAdam, O. J.,. concurs.


author: McAdam, C. J.

text:
    Richard W. Ryan, App’lt, v. Thomas B. Rand, Resp’t.

      (City Court of New York, General Term,

      Filed May, 1887.)

    Personal liability of receivers and other representatives.
    The rule is that a person employed by a trustee, receiver, general assignee, executor or administrator, in matters pertaining to the execution of the trust, must look to the person employing him individually for his compensation. Trustees and such like officials are individually liable because they have no responsible principal behind them for whom they may contract, and against whom the creditor may enforce his demand.
    The defendant was appointed receiver of the Rossmore Hotel, in an action brought in the supreme court, by Huldah H. Clapp against Robert C. Clapp and others. The court afterwards ordered a reference to state the defendant’s accounts as receiver. Charles P. Crosby, as attorney for the defendant, represented him on the reference. The plaintiff is a stenographer, and as such took notes of the evidence offered before the referee. He transcribed his notes and furnished full copies of the evidence to the defendant’s attorney, who subsequently promised to pay the plaintiff’s bill amounting to $262.50. At the close of the plaintiff’s case, his complaint was dismissed upon the ground, that as the services were rendered to the defendant in his representative capacity as receiver, and not in a matter in. which he was individually concerned, the action should, have been brought against the defendant as receiver, and that he could not be held individually. From the judgment-entered on this direction the plaintiff appeals.

      Phillips & Wray, for app’lt; Charles P. Crosby, for resp’t.
   McAdam, C. J.

The trial judge erred in holding that, the defendant was not individually liable for the services-rendered upon his accounting as receiver. The rule is, that, a person employed by a trustee, receiver, general assignee, executor or administrator, in matters pertaining to the execution of the trust, must look to the person employing him individually for his compensation, as the contract does not-bind the estate he represents. The title to the trust property vests in these different officials, as owners for all the--purposes of the trust, and they must account for it to all the persons ultimately entitled to distribution. They are-individually liable because they have no responsible principal behind them for whom they may contract, and against-whom the creditor may enforce his demand. Davis v. Stover, 16 Abb. Pr. (N. S.), 225; Ferrin v. Myrick, 41 N. Y., 315; Mygatt v. Wilcox, 45 id., 306; Bowman v. Tallman, 2 Robt., 385; Wilcox v. Smith, 26 Barb., 316; Schmittler v. Simon, 101 N. Y., 554; Moran v. Risley, 1 City Ct. R., 229; Singer & G. Co. v. Hardy, 2 id., 223.

The defendant must pay the plaintiff’s bill and charge it. against the estate he represents, and, if found correct, it. will no doubt be allowed. It will not do for him to say that he has no estate to charge the account to, for then the. policy of the rule holding him individually liable in the first instance has stronger reasons for its support. The receiver, as a rule, cannot involve the estate in expense without the sanction of the court. Edwards on Rec’rs (Bingham’s ed.), 182, 200, 201, 220; High on Rec’rs, § 175; 1 Parsons on Cont. (7th ed.), 122.

There was no authority from the court making ne plaintiff’s demand a charge upon the estate, and the defendant has no power to make it a charge thereon except-by payment, then charging it in his accounts and having them sanctioned by the court in the usual way. The plaintiff evidently did not intend to render his services gratuitously, and must have a claim against some one. Mr. Crosby, who retained the plaintiff as the attorney and known agent of the defendant, was not personally liable for the bill, not having assumed its payment personally, and the remedy is against the defendant, for whose benefit; the work was done. Bonynge v. Field, 81 N. Y., 160; Same v. Waterbury, 12 Hun, 534; Sheridan v. Genet, 12 id., 660.

In the People v. The Universal Life Ins. Co. (30 Hun, 142), it appeared that the receiver of an insolvent life insurance company, after his appointment, occupied and used premises theretofore occupied and used by the company, and the court (at page 143) said, “The liability sought to be enforced is for the receiver’s own tenancy; it is against him as assignee of the lease, and not for a debt owing by the company * * * The liability of the receiver appears to be the ordinary common law liability of the assignee of a lessee to the lessor.” This decision is iri keeping with the rule maintaining the individual liability of receivers for obligations voluntarily assumed. The plaintiff made out a prima facie case. Indeed the defendant (as far as the record discloses) found no fault with the plaintiff’s proofs, and based his motion for a non-suit on the ground of absence of individual liability on his part. If he intended to require the plaintiff to furnish more defi.nite proofs of employment, the defendant should have been more definite in stating the ground of his motion that the plaintiff might have supplied the proof. Devoe v. Brandt, 58 Barb., 493; Newton v. Harris, 6 N. Y., 345; Binsse v. Wood, 37 id., 526.

As the defendant was liable individually, the trial judge erred in holding he was not, and for this error the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Hyatt and Ehlich, JJ., concur.


author: Browne, J.

text:
    William P. Corbit, App’lt, v. Mathias Nicoll, Resp’t.

      (City Court of New York, General Term,

      Filed June 26, 1887.)

    1. Attachment—Code Civil Procedure, § 682—Power of court to vacate.
    The court has power to vacate a warrant of attachment for failure of a plaintiff to give further security, ordered under the provisions of section 682 of the Code of Civil Procedure. And where an order is made, the language of which is in effect that the warrant "is vacated” and the levy released, unless the plaintiff, within three days, gives a further undertaking, and the condition is not complied with, the warrant of attachment is deprived of all vitality.
    :2. Assignment—What is sufficient proof of by corporations.
    Where it was shown by a witness that the president of the corporation signed the instrument, and that the corporate seal of the company was impressed thereon, Feld, that this is sufficient prima facie to show that it was affixed by authority of the corporation, and carries with it the presumption of the power of officer to execute the instrument.
    Appeal from judgment entered upon dismissal of complaint.

      Edward P. Wilder, for app’lt; William B. Homblower and James Byrne, for resp’t.
   Browne, J.

The learned trial justice, in his opinion,' states that the dismissal of the complaint “should not be-on the merits,” and the ground for his action appears to be based upon the fact that the proof of the assignment of the cause of action was insufficient, yet he states in his opinion, that he “is constrained to hold that the warrant of attachment was not vacated within the meaning of the statute.” This necessarily brings up the merits of the action for discussion, and the question as to whether the judgment can be sustained depends upon the correctness of that conclusion. If that is correct, it would be unnecessary to interfere with the judgment because of error in the finding that the assignment of the cause of action was insufficiently proven.

I think, however, that the record establishes an authorized transfer of the claim, and that the warrant of attachment was in law vacated. It was shown by the witness Wilder that the president of the United States Reflector Company signed the instrument, and that the corporate-seal of the company was impressed thereon; this is sufficientprima facie to show that it was affixed by authority of the corporation, and carries with it the presumption of the-officer to execute the instrument. Whitney v. Union Trust Co., 65 N. Y., 577.

The contention of the respondent that the officer of the company who executed the. instrument should have appeared before a notary and have sworn to the fact that he had been authorized by the board of directors to execute the same is but the suggestion of the means to an end, or one of the ways provided by law for the convenience of suitors and others to establish proof of the due execution of an instrument. It is neither conclusive upon the parties, nor does it exclude the right to resort to other means pro vided by law to make such proof.

The mode of proof adopted, and the recitals in the instrument, show that the assignment was authorized by the board of directors for the purpose of discharging an obligation of the corporation. These are sufficient, if unimpeached, to pass the title to the claim. Whitney v. The Union Trust Co., supra; and see New England Iron Co v. Elevated Railroad Co., 91 N. Y., 154.

The next question to be considered is whether the warrant of attachment was vacated.

The Code, section 640, permits an action to be brought. upon an undertaking given to procure an attachment if the defendant recovers judgment, or if the warrant is vacated. The last event, the plaintiff claims, occurred by virtue of an order made by Mr. Justice Barrett on the 5th of May, 1883. The language of the order is in effect that the warrant “ is vacated ” and the levy released unless the plaintiff within three days gave a further undertaking. It is conceded that the condition was not complied with, so that accepting the literal construction of the order, the warrant of attachment is deprived of all vitality. But the respondent claims that the order should be interpreted simply as a release of the levy thereunder, leaving the warrant in its full vigor, and the penalty of vacation should not be imposed for failure to give additional security, provided for by section 682 of the Code. And that the contract of the defendants did not involve their liability, unless the warrant was-vacated upon the merits.

Now, what is the contract the defendants entered into with the plaintiff’s assignor in this action? To pay all costs awarded, and all damages the defendant in that action might sustain by reason of the attachment, not to exceed $1,000, if the defendant recover judgment or if the warrant is vacated. This is the condition required by law to be contained in the undertaking (Code, § 640), ana the undertaking must be given before the warrant can issue. It has never been questioned that if the plaintiff failed to give the undertaking, or in case it was defective, that the court could vacate the warrant or make it a condition of its continuance that the plaintiff should give a new undertaking. I scarcely think that it would be seriously contended that the effect of such an order would be to be absolutely set aside the warrant. It will be observed that section 640 fixed the minimum penalty of the undertaking, but leaves to the discretion of the judge the right to require an undertaking in such greater sum as he may in his discretion deem sufficient for the protection of the defendant. It is apparent, therefore, while the extraordinary remedy of attachment was permitted for the protection of creditors, the spirit of the law was to extend its protection over the debtor in case a wrong was done to him by the application of the remedy. And that this protection might be as comprehensive as the nature of each particular case would seem to require, the courts are vested with discretionary power to fix the amount of security required from the plaintiff in the first instance and to increase it thereafter. Section 682, Code, provides that after the warrant was granted, application by an aggrieved party might be made to increase the security. It is clear to me that the law contemplated vesting in the -court a continuous discretionary power of protection to the defendant during the pending of the action, and by parity of reasoning, if the court had the power to vacate for want of the first undertaking, it seems to' me that a like penalty would follow the failure to give further security when ordered by the court. It is true that the Code does not expressly provide a penalty in the event of the failure of the plaintiff to give the additional security .required, but where a right is given, the power to enforce .it is necessarily implied, and when the means of enforcement must be determined by the court which makes the order, and is within its discretionary power, can we say .that the means adopted was unauthorized or an abuse of discretion because" it imposed a penalty of vacating of the warrant instead of directing a discharge of the levy under it? The proposition of the defendant that the latter was the order which should have been made, implies the right of this court to review a decision of the supreme court. It is scarcely necessary to say that that power is not vested in "this court. The sureties (these defendants) have no cause for complaint. The event which they agreed should fix their liability has happened. They said if the ‘ warrant which their principals applied for was vacated they would pay the damage incurred by the defendants in that suit by reason of its issuance.

They did not limit their liability by an expressed condition in the undertaking that such vacatur should be only upon the merits, that is, that- the facts which conferred jurisdiction upon the judge to issue the warrant were not "true. Nor can I find legal authority to sustain a conclusion "that such condition could be supplied by implication. When they signed the undertaking they became bound by the laws controlling the remedy, and assumed the risk of their principals, not only to maintain the action, but to sustain the attachment throughout the pendency of the suit. The failure of their principals to do these things, or either of them, establishes their liability to answer in damages. Nothing has been done to enlarge their liability nor was additional risk added to that which they undertook, nor were they deprived of any safeguard upon which they relied when they signed the bond. . They are asked in this action to pay to the plaintiff damages not in excess of the penalty of the undertaking, after the happening of the event which establishes their liability.

To ask courts to inquire into the cause of a vacation in an action upon an undertaking in the absence of fraud and where the jurisdiction of the court granting the order is not assailed, would, in my opinion, lead to more confusion and possible injustice than is even claimed by the respondents. They will suffer if this -court declines to engraft upon the order of the supreme court a different meaning to the sentence “is vacated” than that which it literally conveys.

The fact that the action is still pending does not alter the defendant’s liability; as stated, a right of action upon the undertaking arises in favor of the defendant’s if judgment .runs in their favor or if the warrant be vacated. The contingencies are independent of each other and the happening of either is sufficient to maintain the action.

The judgment should be reversed and a new trial ordered, with costs to abide event.

Hall, J., concurs.


author: Per Curiam.

text:
    Jacob C. Warshauer, Resp’t, v. John G. Webb et al., App’lts.

      (City Court of New York, General Term,

      Filed June, 1887.)

    1. Conspiracy—Action for jury.
    Conspiracy, involving as it does the element of fraudulent combination in which the motives and aims of the actors are to be considered and their intention ascertained in the light of their acts, is an action eminently for a jury. When the illegal combination is established, anything done by one of the conspirators in furtherance of the common design is in law the act of all.
    '2. Same—Necessary parties.
    An agreement that the proceeds of the recovery be paid to another, does not make the person to whom the proceeds are to be paid a necessary party plaintiff.
    Appeal from judgment entered on verdict of a jury in favor of the plaintiff.

      W. A. Copp, for appellant Webb; B. Morris and M. J. McKenna, for appellant Call; M. Ooodhart, for resp’t.
   Per Curiam.

The theory of the action is that the defendants conspired together to defraud the plaintiff. That Call played the initial part of drawing the plaintiff in, and that Webb, by misrepresentations, in furtherance of the scheme finally succeeded in accomplishing the common design. The jury have found on all the issues in favor of the plaintiff. The case involving, as it does, the element of fraudulent combination in which the motives .and aims of the actors are to be considered and their intention ascertained in the light of their acts, was eminently one for the jury. In fact, this was conceded, for neither party asked for the direction of a verdict, and on the close of the case, neither defendant asked for a dismissal of the complaint, tacitly admitting that at that stage of the proceedings enough had appeared to warrant the trial judge in submitting the conflicting proofs and theories to the jury for determination. The case was fairly submitted to them, and no fault was found or exceptions taken by either party to the charge delivered by the learned trial judge.

We have examined the exceptions, and have failed to discover any abuse of power or discretion in admitting or excluding evidence. The only other exceptions worthy of notice are those at fols. 33 and 289. At fol. 33, the defendant Call asked to dismiss the complaint because there was no cause of action alleged in the complaint against him. True, the complaint particularizes acts against Webb, and he is weak in specific charges against Call, but it certainly charges him in a general way as a co-conspirator of Webb, so that what is alleged against Webb is legally imputable-to Call as well, the acts of each being links in the chain which connects both. The correct rule seems to be,” says Archibald’s Crim. Pr. and Pleadings (vol, 2, p. 1, 835, Pomeroy’s Notes), that, in a charge for a conspiracy, if the act to be done is in itself illegal, the indictment need not set out the means by which it was to be accomplished. ”

If persons illegally concur in doing an act, they may be guilty of a conspiracy, though they were not previously acquainted with each other. People v. Mather, 4 Wend., 229.

In the present case the alleged conspirators were partners in business together. If an individual connect him self with others in a conspiracy to defraud, or for any other-purpose, it is no answer to say that the plan was concocted before he became an associate. By connecting himself with them and aiding in the execution of their plan, he adopts their prior acts and declarations so far as they constitute a part of the res gestee. Den v. Johnson, 3 Har., 87; Collins v. Com., 3 Serg. & R., 220. Anything done by either in the execution of the common purpose is done by all. If these general principles are correctly stated, the complaint, while open to a motion to make it more definite, is hardly demurrable on its face. These observations dispose of the exception at folio 33.

The exception at folio 289 presents the claim that by the agreement printed at folio 100 of the casé, the plaintiff ceased to be the real party in interest. This claim is without warrant. The instrument referred to merely authorizes the payment to one Weidmeyer of the proceeds of the recovery. Weidmeyer’s claim attaches when the proceeds are collécted by means of this litigation, not before. See Cummings v. Morris, 25 N. Y., 625; Allen v. Brown, 44 id., 231. While we might on the evidence have decided the issue differently, it does not necessarily follow that the jury decided improperly, or that their verdict is wrong and that a new trial should be had. They weighed the evidence and the inferences deducible from it, and there being no legal error, their verdict should be allowed to stand.

For these reasons the judgment and order appealed from must be affirmed, with costs.


text:
    Alice Richards, Pl’ff, v. Charles Crocker, Def’t. Same, Pl’ff, v. Samuel H. Kingsley, Def’t.

      (City Court of New York, Special Term,

      Filed April 20, 1887.)

    1. Corporation—Stockholder—Action against—Defense.
    To an action against a stockholder of a business corporation (Laws 1875, chap. 611) to enforce a personal liability because the entire capital stock was not fully paid in, it is a defense that the stockholder is also a creditor of the company to an amount exceeding his stock.
    2. Same—Director—Defense in action against.
    A director of such a corporation is liable for all its debts, without limit as to the amount, if he has signed an annual report false in any material particular, and it is not defense to such a liability that the director is also a creditor of the company, for this would not justify the fraudulent act charged.
    Decision on demurrers interposed by the plaintiff to new matter pleaded in defense by the defendants.

      W. W. Badger, for pl’ff:; Alexander & Green, for deft Crocker; Eaton & Lewis, for deft Kingsley.
   McAdam, Ch. J.

The American Opera Company (limited), was organized under the act of 1875, chapter 611, and the defendant is sought to be charged in a dual capacity:

First, as a stockholder, on the ground that the whole amount of capital stock fixed and limited by the company at $250,000 and afterwards increased to $500,000 has not been paid in. Section 37.

* Second, as a director, on the ground that the annual report made by the corporation, signed by the defendant and filed January '20, 1887, was false in several material particulars. Section 21.

The liabilities incurred in these two capacities are governed by different rules. As stockholder, the defendant became liable (if at all) to an amount equal to the amount of stock held by him (section 21), and as to this form of responsibility, it is a defense that the stockholder is a creditor of the company to an amount equal to the amount of his stock. Mathez v. Neidig, 72 N. Y., 100; Agate v. Sands, 73 id., 620; Wheeler v. Millar, 90 id., 353.

It is no defense that the particular stockholder sued has paid his stock in full, for if other stockholders are in default he is liable (Wheeler v. Millar, supra), though guilty of no personal dereliction himself. The liability m such a case constitutes a fund which belongs to the creditors, as well those who are stockholders as those who are not. The cases cited, though decided under the manufacturing act of 1848, are equally applicable to the provisions of the business act of 1875. The language of the several sections construed is substantially the same, and their re-enactment in the later statute is an adoption by the legislature of the construction previously put upon them by the courts under the former act. People v. Green, 56 N. Y., 466. As director, however, the defendant is hable (if at ah) for ah the debts of the corporation while he was director (section 21), without hmitation as to the amount. The habhity is unhmited, because designed to punish the fraudulent act of the officer for making false representations as to the pecuniary condition of the company, calculated to deceive the public and induce persons to extend credit to the company which they might have been induced to give if the truth had been made known. To such a habihty it wih not do for the director to say in defense that he is a creditor of the corporation, for that will not excuse a fraud through which another has suffered a personal pecuniary loss.

The fact that the defendant is a creditor of the corporation to an amount exceeding the amount of stock held by him constitutes a complete defense to his liability as stockholder, but for the reasons stated it furnishes no answer whatever to his liability as director.

The plaintiff has grouped both grounds together. She may fad as to the one and succeed as to the other. As she has, figuratively speaking, attempted a double-barreled remedy, she cannot complain that the defendant has interposed a legal fortification as protection against the one and ,a denial of fraud as a defense to the other.

It follows, therefore, that the demurrer must be overruled, with leave to the plaintiff to withdraw the demurrer on payment of ten dollars costs in each case.


author: Rehrbas, J

text:
    Alfred W. Young. Pl’ff, v. C. Olivia Brice, Def’t. Jennie Woods, Pl’ff, v. Same, Def’t. Jessie Woods, Pl’ff, v. Same, Def’t. Jessie Watson, Pl’ff, v. Same, Def’t. Alice Richards, Pl’ff, v. Same, Def’t.

      (City Court of New York, Special Term,

      Filed May, 1887).

    1. Corporation—Stockholder—When can be sued.
    A stockholder cannot be sued until after judgment obtained against the corporation and return of execution unsatisfied.
    2. Same—Answer — Demurrer — When dependant entitled to judgment on demurrer.
    Where the answer alleges that before the return of execution unsatisfied, the defendant paid the full amount of her liability to another creditor whose right of action against the defendant had become complete and who had brought suit against her, Held, that she was absolved from further liability, and that, inasmuch as this action was brought before obtaining judgment against the corporation, there should be judgment for the defendant on the demurrer.

      W. TV. Badger, for pl’ff; Sampson, Thatcher and Barnum, for deft.
   Rehrbas, J

The defendant pleads that the Southern Trust Company, a judgment creditor of the American Opera Company, commenced an action against her April 20, 1887, to enforce her liability as a stockholder in said company to the extent of $5,000 and interest, on the cause of action set forth in the answer. That her total liability for the debts of the opera company never exceeded $5,000, and that on May C, 1887, she paid the trust company $5,000 in satisfaction of her aforesaid liability. The suit of the trust company was similar in character to the present action.

The answer alleges that the trust company recovered a judgment against the opera company, February 21, 1887, and that on the same day execution was duly issued, and returned before the action by the trust company against her was instituted, to enforce her liability as a stockholder.

The action by the trust company to enforce this liability was begun, as before stated, on April 20, 1887. The plaintiff commenced the present action April 7, 1887; but the complaint alleges that judgment was recovered against the opera company on May 16, 1887, and that execution was thereafter duly issued and returned unsatisfied. This court has held that no action is maintainable to recover the statutory liability sought to be enforced against the defendant until a judgment has been recovered against the corporation, and until execution has been issued and returned unsatisfied, So that, on April 7. 1877, when the present action was commenced, the plaintiff had no existing cause of action whatever against the defendant.

The trust company, on the contrary, had an existing right of action on April 20, 1887, when it brought its suit against the defendant, and her liability was then fixed so far as that action was concerned. It did not become fixed as to the plaintiff until May 16, 1887; and the defendant, prior to this time, to wit, May 6, 1887, discharged her liability by payment to the trust company of the $5,000 claimed. This discharged all liability existing against her at that time.

It is a rule of pleading, that on a demurrer the court will consider the whole record, and give judgment for the party, who, on the whole, appears to be entitled to it. Thus, where the plaintiff demurred to the defendant’s plea, if his declaration was bad, judgment would be rendered for the defendant. Moak’s Van Santvoord’s Pleadings (3 Ed., 732), and cases cited; Van Alstyne v. Freday, 41 N. Y., 174.

Under the pleadings as they stand, considered in their entirety, the defendant is entitled to judgment on the demurrer, with costs.


text:
    Mary McClousky, Pl’ff, v. Charles A. Farley et al., Def’ts.

      (City Court of New York, General Term,

      Filed May, 1887.)

    Bab—Judgment fob damages fob tbesfass is a bab to action fob conversion OF SAME PROPERTY.
    The defendants entered upon plaintiff’s premises and took therefrom certain receipts and a horse and wagon and other property. The plaintiff brought suit in a district court and recovered judgment for damages for malicious trespass, for the entry upon her premises and the taking of the receipts, and then brought this action for the conversion of the horse and wagon. Held, that the judgment in the district court is a bar to a recovery in this action.
    Motion to set aside the verdict and for judgment for the defendant, on the ground that a formal judgment recovered by the plaintiff against the defendant in the eighth district court is a bar to a recovery in this action.

      William N. Cohen, for motion; John H. Atkinson, opposed.
   Browne, J.

Counsel for the respective parties agree upon the proposition that the rule is fully established that an entire claim, arising either upon, the contract or from a wrong, cannot be divided and made the subject of several suits, and if several be brought for different parts of such a claim, the pendency of the first may be pleaded in abatement of the other, and a judgment upon the merits in either will be available as a bar in the other suit.

Among the numerous authorities cited by both is Farrington v. Payne (15 Johns., 431, 432). In this case the constable under an attachment against one Peter Payne, carried away three quilts and a bed. The articles were the property of John Payne, who sued the constable in trover, but in two actions, one for the quilts, the second for the bed. He recovered judgment in the first, and it was held a bar to the second.

The court, in its opinion, says: “The only evidence of conversion was the tortious taking under the attachment. The seizure of the bed and the bedquilts was one single indivisible act, and the plaintiff ought not be permitted to vex the defendants by splitting up his claim for damages for separate suits for each article so seized.

There is no difference in this respect between actions of trover and trespass, and in Bendernagle v. Cocks (19 Wend., 207), it was held that all damages accruing from a single wrong, though at different times, make but one cause of action. Each comes under the familiar rule that if a party . will sue and recover for a portion he shall be barred of the residue.

In Secor v. Sturgis (16 N. Y., 548), the rule there stated is that in cases of torts each trespass or conversion or fraud gives a right of action, and but a single one, however numerous the-items of wrong or damage may be. '

And in Herrman on Estoppels, etc., page 250, section 22, "the rule is there laid down that all acts of the same nature performed at the same time are regarded as one act in law, and cannot be made the subject of several and separate actions where they are continuous. Illustrations of this rule will be found in Sheldon v. Lake (9 Abb. N. S., 306), Draper v. Stouvenel (38 N. Y., 219) Bull v. Colton (22 Barb., 95).

I might multiply the instances in which the rule has been applied which are referred to in the very exhaustive briefs handed in by counsel. I have presented sufficient, however, to determine the application of the rule to the cause at bar.

There can be no doubt that the facts shown bring the case within the rule. The receipts were taken at the same time, "viz.: on August 28, 1886, and under the same claim with the other property.

And when the plaintiff elected to bring her action in the eighth district court and plead therein as for malicious trespass, she could have recovered not only her damages for the entry upon her premises and the taking of the receipts, but also the value of the other property to the extent of the jurisdiction of the court, and the evidence which was admitted in this case to prove her damage for taking the horse and •other property would be admissible in that action for like purpose under the form of pleading there adopted. The fact that the pleading there was for malicious trespass and this action for conversion does not change the rule.

In Draper v. Stouvenel (supra) it was held that where it appeared the plaintiff would be entitled to all the damages proved to have been sustained by the acts of the defendant, a second act for damages not proven is barred by the former judgment. The actual wrong committed is the substance of the action. Under our present form of procedure all technical distinctions in pleading are abolished, and the rule now requires simply a statement of the facts constituting the cause of action, and all that the pleader deems himself entitled to for the cause complained of, must be established in that action or be forever barred.

It is urged by the plaintiff that a claim for damages for a malicious trespass, by which claim he designates the act of the defendant in taking the receipts, is a different cause of action from that for taking the horse and wagon and other property; and the reason given by him is that the defendant, as marshal, could not justify the taking of the receipts to satisfy the judgment against her husband.

This is not the test. It is a matter of no consequence in the determination of the question, how the defendant would justify his wrongful act or acts, the plaintiff is not bound to anticipate the defense, nor aid the person guilty of wrong against her. Her only duty is to establish the wrong done her, leaving the defendant to justify if he could. If he justifies the taking of any portion of property it would go in mitigation of the plaintiff’s claim for damages, whether the jplaintiff’s cause of action was founded upon malicious trespass as in that case, or in trover as in this. Under the stipulation the verdict for the plaintiff will be' set aside and judgment directed for the defendant, with costs.

This decision is founded upon the fact that the judgment recovered in the eighth district court is a bar to a recovery in this action. It is not intended by me to disturb the verdict upon any other ground, and if the question of prior judgment was eliminated from the case, I would, not interfere with the verdict._


author: Mo Adam, C. J.

text:
    William Parry, Pl’ff, v. The American Opera Co., Deft. Alice Richards, Pl’ff, v. Same.

      (City Court of New York, Special Term,

      Filed May 27, 1887.)

    Appeal—Bight op—Corporation—Sequestration and receivership.
    Until judgment dissolving the corporation, any contract may be enforced against it as well after as before the appointment of a receiver. A decree-sequestrating the property of an insolvent corporation and appointing a. receiver, does not take from it the right to defend itself by all legal means against hostile proceedings. The sequestration operates to suspend its ordinary business, but does not affect the corporate franchise. Bs right to appeal from judgments rendered against it, is not impaired if the appeal be taken in defending itself from liability, and not in pursuit of assets-which have passed to the receiver.
    Motion to stay all further proceedings of Eaton & Lewis, as attorneys for defendants in these actions, and particularly* on alleged appeals taken by them to the general term from the judgments recovered herein by the plaintiffs, and tostrilce the notices of appeal from the files of the court.

      W, W. Badger, for motion, Eaton & Lewis, opposed.
   Mo Adam, C. J.

Issues were joined in these actions February 18, 1887. An order was entered on the same day in an action in the supreme court, brought by Charles H. Meiggs against The American Opera Company, declaring it insolvent, and sequestering all its property and effects for its creditors, and restraining all further business or interference therewith by any of 'its officers or agents, and appointing Thomas Gr. Rigney, as “receiver of all its property, rights and things in action, with the usual powers and duties as provided by law.” Final judgment was entered in said action March 22, 1887, confirming said appointment in all things. The receiver qualified and entered upon the duties of his office. In the judgment it is provided “that the defendant corporation, and each and every person claiming-to act by or under any authority, office or power derived from it, be permanently restrained and enjoined from attempting to exercise any power or authority over any of the assets or property rights thereof.” The two actions in the city court terminated in judgment for the plaintiff, April 23, 1887. The defendant was represented on the trial by its present attorneys, Eaton & Lewis, and these attorneys, on behalf of the defendant (the opera company), served notices of appeal, May 2, 1887, which were retained, without objection, by the plaintiff’s attorney until May nineteenth, when they were returned for irregularity, in this, that the attorneys who served the notices had been practically superseded by the sequestration and receivership. If the opera company had been the plaintiff, prosecuting for rights of property, the transfer of its intereest therein to the receiver might have been a good objection to an appeal subsequently taken by the corporation. Mills v. Hoag, 7 Paige, 18; Hackley v. Hope, 2 Ct. App. Dec., 298.

But here the corporation is merely exercising its natural right of defense, which is not superseded by the sequestration and the appointment of a receiver. The receiver neither urges nor opposes the appeals taken, and seems indifferent respecting them. What control he could assert, if he chose to need not be considered, because he has made no application in the premises. The supreme court action was not brought to dissolve the corporation (Code, § 1785), nor does the judgment undertake to dissolve it. It merely sequesters the property of the corporation (section 1784), and, until judgment dissolving the corporation and ending its existence, any contract may be enforced against it, as well after as before the appointment of a receiver (Pringle v. Woolworth, 90 N. Y., at pp. 510, 511). If this be so, it must follow as a necessary consequence that the appointment of a receiver does not take away from the insolvent corporation the right-to defend itself by all legal means against hostile proceedings prosecuted against it. The plaintiffs herein continued the prosecution of the actions against the corporation after the appointment of the receiver, and its right of defense, which was conceded to and exercised by it at the trial, does .not end until the litigation is finally brought to a close, according to the forms of practice laid down by the ' Code. The sequestration of the assets of the corporation operates to interrupt and suspend its ordinary business, but does not necessarily affect the corporate franchise (Mann v. Pentz, 3 N. Y., at p. 419), and if the assets prove more than sufficient to liquidate its liabilities, the surplus goes back to the corporation, where it legally belongs. The corporation need not await the final distribution, for on paying its creditors it is entitled to have the action for sequestration discontinued and the receiver discharged (Angell, rec’r, v. Silsbury, 19 How. Pr., 48). The court cannot, under such circumstances, hold that the-corporation has lost its right to prosecute these appeals in defending itself from a liability which it disputes, and which under certain possibilities, it may ultimately have to discharge.

For these reasons the application must be denied, but without costs.


text:
    Robert F. Gillin et al., v. Bartley Campbell.

      (City Court of New York, Special Term,

      Filed May 2, 1887).

    Removal oe receiver in supplementary proceedings.
    A receiver, as a rule, should be strictly impartial and disinterested, of unimpeachable honor and integrity, having sufficient knowledge and ability to manage the estate properly without the intervention of any third party. He should not be the agent, assignor or representative of either party. Neither the judgment creditor nor his assignor should be appointed receiver. In partnership contests, one of the parties is sometimes appointed receiver, without compensation, but this is done to protect the assets for the general benefit of the members of the firm, and then only on the giving of abundant security for the proper performance of the trust' confided to him, in view of his special fitness for the place, on account of his peculiar knowledge of the business and his interest in its economical and proper liquidation.
    Motion by plaintiffs, as judgment creditors, to remove receiver appointed in supplementary proceedings.
    . A. J. Dittenhoefer, for motion; J. T. Walsh, opposed, P. Malone, W. Parker and J. M. Ball, for other judgment creditors.
   McAdam, C. J.

The plaintiffs, who are judgment creditors of the defendant, seek the removal of Ernest Harvier, the receiver of the property of the defendant, appointed in a certain proceeding supplementary to execution had in this court, wherein one Bernard Brady was plaintiff, and Bartley Campbell the defendant and judgment debtor. It appears that the defendant, who has since been adjudged a lunatic, and is at present confined in an asylum for the insane, was for a number of years well known in the theatrical profession as a playwright and manager. Misfortune overtook him, and he became indebted to various people, among others, to Ernest Harvier, the present receiver. On February 16, 1886, Harvier having assigned his claim against Campbell, Bernard Brady, the assignee, commenced an action in this court against Campbell on the assigned claim, and on February 24, 1886, recovered a judgment thereon for $828.03. He issued an execution, and immediately applied to one of the justices of this court for an order that the judgment debtor be examined in aid of the execution, and on the following day (the twenty-fifth), Harvier, the assignee of the claim, was appointed receiver. He has continued te act as such up to the present time. Since his appointment, various other judgments have been recovered against Campbell, and the receivership has been extended to cover those judgments, as authorized by section 2466 of the Code. During this time the receiver has been in receipt of large sums of money, and disbursed the same, but has never filed any account of his stewardship. It is claimed, and not denied, that the judgment in the Brady action has been paid out of the assets of the debtor; so, too, have certain other judgments in the order of their priority.

The wife of the debtor, as well as a number of his creditors, join in the request for the removal of the present receiver, and incidently, the Actor’s Fund of America, a reputable charity, of which the judgment debtor was a member, also unite in the request and ask that one of their number, amply qualified for the trust, be appointed receiver without compensation, so that whatever can be saved to the creditors and the dependent family of the unfortunate debtor, may be preserved. Such a prayer appeals with much force to the conscience of the court in dealing with a trust which ought, in the nature of things, to be administered for the sole advantage of those interested. Without imputing anything against the integrity of Harvier, he ought not to have been appointed receiver, and had the court known then that he was the assignor of the Brady claim, he would not have received the appointment, because it would only be in some extraordinary case that the court would appoint a real or nominal plaintiff receiver of the property of his judgment debtor, (2 Wait’s Pr., 223), and no facts calling for the exercise of such special authority were made to appear in this instance. It is true that in partnership contracts one of the parties is sometimes appointed receiver, without compensation (2 Wait’s Pr., 224), but this done to protect the assets for the general benefit of the members of the firm, and then only on the giving of abundant security for the proper performance of the trust confided to him, in view of his special fitness for the place on account of his peculiar knowledge of the business and his interest in its economical and proper liquidation. The proceeding in which Harvier was appointed was an ordinary judgment in a common law action, in which he was interested in having the judgment of his assignee paid.

_ A receiver, as a rule, should be “ a strictly impartial and disinterested person, of unimpeachable honor and integrity, having sufficient knowledge and ability to manage the estate properly, without the intervention of any third person,” (Fripp v. Chard Railway, 11 Hare, 241, 260; Lupton v. Stephenson, 11 Irish Eq., 484). He should not be the agent or representative of either party to the action, and should exercise his functions disinterestedly for the common benefit of all persons interested in the estate. The fund or property is to be regarded as being in custodia legis for the benefit of whoever may eventually establish title thereto, (High on Receivers, [2 ed.] § 1.). The papers disclose that considerable litigation has already arisen from the appointment made, owing to the dissatisfaction of certain creditors, as well as the wife of the debtor who is so unfortunately situated as to have an insane as well as an insolvent husband, and the court should be jealous in watching and protecting the various interests under its care. The bond given by the present receiver, which is for $2,000, is conceded to be too small in amount, and irregular in form, being made to the clerk instead of the People, (Code, § 715).

These insufficiencies should have been corrected before. In view of the fact that some of the creditors, as, well as the-wife and the committee of the person of the lunatic, insist-upon a change of receivership, I am at a loss to discover any good that can come from a continuance of the present-appointment, or any reason why the present receiver should be eager to retain his position. I take into consideration, too, the fact that reputable, responsible and successful managers offer, as matter of charity towards their former colleague and his dependent family, to perform what remains to be performed of the trust, without any charge or compensation, and that Harvier has not offered to do so, nor can he be expected or required so to do.

After a careful reading of the papers and consideration of all the facts, and the improvident manner of the present appointment, which, if judicially sanctioned, may form a bad precedent, I conclude that it will be for the best interests of all concerned, that the present receiver be removed, and that Mr. A. M. Palmer, of this city, be appointed in his stead, upon executing and filing a proper bond in the penal sum of $10,000, with sufficient sureties to be approved by the court, and upon his executing and filing a stipulation that, he will act as such receiver without compensation. The orders already made, extending the receivership to the various judgments, are to apply to the new receiver when he qualifies, and the orders already made, in reference to the payment of any of said judgments, are also to apply to him, subject to any motion he may make respecting the same.

The present receiver will be directed to file his accounts, to-the end that they may be passed upon under the direction of the court, and that the assets in his hands may be delivered over to the new receiver.


author: Hall, J.

text:
    Jerome H. Kantrowitz, v. Jacob Kulla et al.

      (City Court of New York, Special Term,

      Filed June, 1887.)

    Judgment—Partners—Effect of judgment against one of the partners—Code Civ. Pro., § 1278.
    A judgment against one of two joint debtors merges the debt, and no-action will lie thereafter against tile other, excepting only in case of a judgment by confession, which is especially provided for by section 1278-of the Code of Civil Procedure. It was not intended by the legislature to extend the privileges provided by section 1278 to judgments upon officers after suit brought.
    Motion in behalf of Henry Nordlinger and others, subsequent attaching creditors, to vacate attachment herein as-against the joint property of defendant Kulla.

      Harry W. Mack, for «the motion; D. A. Levien, opposed.
   Hall, J.

This action was commenced to recover from defendants, as co-partners, the sum of $1,910. The defendant, Kantrowitz, alone was served with process, although, an appearance was duly served for both defendants, an attachment was obtained against both defendants, and a levy made thereunder.

An offer to allow judgment for the full amount claimed was duly made on behalf of defendant Kantrowitz alone, which was accepted by the plaintiff, and judgment was entered accordingly, and still remains of record.

Henry Kordlinger and others, on whose behalf this motion is made, brought suit against defendants and obtained attachments subsequent to that of plaintiff, and they now seek to vacate the attachment granted herein on the ground that plaintiff, having accepted the offer of one of the joint debtors, and entered judgment against him, the debt has become merged in the judgment and no longer has an existence, and plaintiff can have no further remedy against the defendant Kulla or the firm, and therefore there is no ground for upholding the attachment against the firm of Kulla.

It is too well settled in this state to admit of argument that a judgment against one of two joint debtors merges the debt, and that no action will lie thereafter against the other, excepting only in the case of a judgment by confession, which is especially provided for by section 1278 of the Code, Candee v. Smith, 93 N. Y., 349, and cases cited.

The judgment in this action was not entered by confession hut after action brought, and under an entirely different provision of the Code.

The legislature, after enacting section 1278 of the Code, had in view, undoubtedly, the hardship which might ensue to creditors by compelling them to obtain the confession of all joint debtors, or else to merge the claim against all in a judgment against one, and evidently desired to facilitate and encourage the acceptance of judgment by confession rather than have debtors put to the expense of an unnecessary law suit, but the absence of any such provision in regard to judgments upon offers after suit is conspicuous, and would seem to be conclusive of the legislative intent not to extend the privilege to cases of that nature, and proper construction requires that where a distinction is clearly recognized and provided in an act, it must be maintained throughout.

The action then is ended, the court is powerless to award any further relief to plaintiff in this action; he has elected to have judgment against one of the joint debtors, and so has merged and extinguished his cause of action against the other.

The judgment rendered herein does not affect the partnership property, but only the interest of the defendant Kantrowitz, therein, and the attachment was issued against the joint property and the separate property of each defendant, but as plaintiff has elected to enter judgment against one he can have no relief against the joint property or the separate property of the other, and, therefore, the attachment can serve no useful purpose, but if allowed to stand, would only act as a foil to the moving parties and other creditors, who have been diligent in seeking their remedies and have-made no false steps in seeking to enforce their rights.

It was argued, or suggested, that the right to raise the question here presented was a personal privilege appertaining to the other joint debtor, and that if he did not object to the action proceeding to judgment against him, that no one else could complain. This argument is not sound. It would leave too much room for collusion, and the debt is. extinguished absolutely by action and operation of law, and any one whose rights are effected may invoke the remedy.

The moving parties have no standing in the action, and ' cannot appear upon the trial and contest plaintiff’s claim as against the defendant Kulla, and the relief sought by them upon this motion is the only means at their command for-obtaining their redress.

The attachment will be vacated as against the joint property of the defendants, and the separate property of defendant Kulla, with ten dollars costs to the moving party.


author: McAdam, O. J.

text:
    Wilson McCrea, Pl’ff, v. Emanuel Jacobs, Def’t.

      (City Court of New York, Special Term,

      Filed June 27, 1887.)

    Jurisdiction—On city court to try title.
    The jurisdiction of the city court of New York, in ordinary common-law actions, is neither divested nor impaired hy the fact that the title to real property arises upon the pleadings or is presented for adjudication.
   McAdam, O. J.

The only question presented by the demurrer is whether this court has jurisdiction to a try disputed question of title to real properly, where such an issue arises-in an ordinary common law action to recover back a deposit made on a contract for the purchase of realty, subsequently rescinded by the vendee on the ground that the title of the vendor is defective. This incidental branch of jurisdiction has been vested in the court since 1875. The history of legislation on the subject is as follows:

In 1813 (2 Rev. L., p. 382, § 106) jurisdiction to try title was restrained, except in “actions of trespass upon lands.” The inhibition was continued by the old Code (§§ 65, 53, 54). In 1875 the restriction was removed in express terms (1875, chap. 479, sec. 1), and has never been re-instated. The act of 1875 (supra) was repealed in 1877 (chap. 417, p. 475, sec. 49), because the revision by the new Code rendered it no longer necessary. The legislature, by the new Code, reenacted in comprehensive language the provisions of former laws in regard to jurisdiction (sec. 315) and at they ame time re-enacted the only limitations upon the jurisdiction conferred, and'in the enumeration of disabilities it purposely omitted all reference to restrictions upon the power to try disputed questions of title (sec. 316). In 1880 the legislature went further. It expressly repealed the restraining act of 1813 (L. 1880, p. 369, sec. 5), and in re-enacting section 54 of the old Code by making it section 2863 of the new, it made the disability to try title applicable to justice’s courts only, and in section 3347, carefully enumerated what sections of the new Code were to apply to the Marine (now city) court, and in the enumeration intentionally omitted" all reference to section 2863, which is in no manner applicable thereto. So that the jurisdiction of the city court, in ordinary common law actions, is neither divested nor impaired by the fact that the title to real property arises upon the pleadings or is presented for adjudication.

It is a settled principle of law that where a judicial function is conferred or power given “ everything necessary to make it effectual or to attain the end is implied” (The People v. Chapin, 7 N. Y. St. Rep., p. 213), and when jurisdiction once lawfully attaches the power to make it effectual is not stinted by the character of the issue presented in defense but is plenary and ample for all judicial requirements. It follows that there must be judgment for the plaintiff on the demurrer, with costs.