text:
    John H. Oeters, Plaintiff, v. John Groupe et al., Defendants.
    It was decided in this case, that, if on an appeal the appellant fails to make a case, and fails to appear on the argument, the respondent may take a judgment of affirmance.
    Heard, at General Term, before Boswobth, Ch. J., and Moncrief, Robertson, White, and Monell, J. J.,
    October 25, 1862;
    decided November 8, 1862.
    See the point decided, in the index to this volume, under the title, “ Practice — Appeal.”
   And see the motion to set aside a judgment of affirmance reported at length, with the opinion of the Court at General Term, in 15 Abbotts’ Pr., 263.


source: Caselaw Access Project

author: By the Court—Monell, J.

license: Public Domain

text:
    Henry Rutter, Plaintiff and Appellant, v. Claus Puckhofer et at., Defendants and Respondents.
    1. In an action in which the Court have jurisdiction of the parties and the subject matter, the omission of an infant plaintiff to procure the appointment of a guardian ad litem, is an irregularity which may be cured or waived. It does not deprive the Court of jurisdiction.
    2. The defect is cured if the plaintiff attains majority before the defendants raise any objection.
    (Before Bosworth, Ch. J., Moncrief, Robertson, Barbour and Monell, J. J.)
    Heard, November 8, 1862;
    decided, November 15, 1862.

      Appeal from an order setting aside the summons and complaint and all subsequent proceedings in this action.
    The action was to recover damages for the unlawful taking of the personal property of the plaintiff. The defendants were Claus Puckhofer and Charles F, Watts. They jointly answered the complaint, denying generally every allegation, and claiming the property under an. execution.
    The action was at issue about the 20th September, 1861.
    Upon affidavits that the plaintiff, at the commencement of the action, was an infant, and that no guardian had been appointed for him, the defendants moved, in February, 1862, to set aside the proceedings. The defendants’ attorney states in his affidavit that the defendants had no knowledge or information that the plaintiff was an infant, until the 3d of February, 1862.
    In opposition to the motion, the plaintiff read his affidavit, in which he swears he became of age on the 17th of December, 1861.
    It was understood that the motion was granted on the ground that the Court could have no jurisdiction of the action unless a guardian was appointed before the service of any process therein.

      Charles Cheney, for plaintiff, (appellant.)
    Cited Hill v. Thacter, (3 How., Pr., 407;) Code, § 144, sub. 2; Id., §§ 147,148, and notes; Hastings v. McKinley, (1 E. D. Smith, 273; affirmed Seld. Notes, No. 4, p. 19;) People v. N. Y. Com. Pleas, (11 Wend., 164;) Leopold v. Meyer, (10 Abbotts’ Pr., 40; ) Van Santv. Eq. Pr., 29,88; 1 Hoffm. Ch. Pr., 60.

      G. W. Cotterill, for defendants, (respondents.)
    Cited Hill v. Thacter, (3 How., Pr., 407,) Hoftailing v. Teal, (11 Id., 188,) Wilder v. Ember, (12 Wend., 191,) Comstock v. Carr, (6 Id., 526,) Ex parte Scott, (1 Cow., 33,) Arnold v. Sandford (14 Johns., 417,) 2 Saund., 212.
   By the Court—Monell, J.

It is not disputed that the plaintiff was an infant at the commencement of the action, nor that he did not procure the appointment of a guardian. There ds some doubt whether he became of age before the motion was made. Two of the defendants’ affidavits give declarations of the plaintiff, showing him not to be of age, but the plaintiff swears he became of age in December, 1861, and he proves it by the family record, usually the best evidence of the fact.

I am inclined to believe the plaintiff’s statement, and to assume that he was of age when the motion was made.

It is not necessary to decide whether the provision of the Eevised Statutes, requiring the appointment of a next friend for an infant plaintiff, before the issuing of process, is in force, or in any degree affected by the Code. Both require the appointment to be made, the one of a next friend and the other of a guardian, before the commencement of the action. For is it important to determine, whether the position of the plaintiff’s counsel, that the objection goes to the legal capacity of the plaintiff to sue, and, therefore, is waived by not setting it up by answer, is or is not sound.

I think the learned Judge who granted the motion erred in deciding that this was a jurisdictional question. The Court had jurisdiction of the parties and of the subject of the action, and the omission, therefore, to procure the appointment of a guardian was an irregularity, which might be cured or waived.

We have not been referred to any case where such omission has been held to deprive the Court of jurisdiction; and I believe no such case can be found.

In Fitch v. Fitch, (18 Wend., 513,) a capias was issued at the suit of an infant plaintiff, before the appointment of a next friend. A motion to set aside the proceedings was denied, it appearing that since the commencement of the suit a next friend had been appointed. The subsequent appointment cured the irregularity.

But in Fellows v. Niver, (Id., 563,) the question was more folly examined. The suit was commenced without a next friend. After plea pleaded the defendants moved to-set aside the proceedings. It was shown on the part of the plaintiff, that, since the commencement of the suit, a next friend had been appointed, but notice thereof had not been given to the defendant. The Court, after reviewing the several statutes on the subject, and alluding to the practice requiring the defendant to take advantage of an infant’s suing without a prochein ami, by plea in abatement, say “ the only difference between the former statutes “and the present is this; formerly the proehein arnicas “ appointed after the issuing of the process, but before a “declaration; now it should be done before process; but “now, as formerly, it is a question of regularity merely; “not, as the defendant’s counsel supposed, a question of “jurisdiction. It is a question of practice, and the irregularity may be waived under the present statute as well “ as under the old statutes. In both periods, the next “Mend must be appointed before declaration, and the “appointment must appear in the commencement of '“the declaration. The practice after declaration is the “same now as formerly. If this suit was commenced by “ writ, the defendant might have moved, before he pleaded, “ to set aside the writ; but, having pleaded to the merits, “he- has waived the irregularity, and admitted that the “plaintiffs are recti in curia. If he has any remedy now, “it is not by motion.”

This case covers the whole ground, and is decisive against the defendants, unless it can be said that their answer, having been put in without any knowledge or information, of the irregularity, cannot be deemed to be a waiver of it. The subsequent steps of a party in an action, in ignorance of an irregularity, do not always.operate as a waiver of the irregularity.. But there is no proof of such ignorance except the attorney’s affidavit. ‘

The answer, however, in this case is, that before the motion was made the plaintiff had attained to his majority, when the necessity for, as well as the offices of a guardian, had ceased. I entertain no doubt that, after the infant becomes of age, the guardian may be released and the suit may proceed in the name of the infant alone. The infant then becomes sui juris; he is responsible for costs, and can appoint his own attorney.

For these reasons we are of opinion the order should be reversed, without costs.


text:
    John Purchase, Plaintiff and Respondent, v. George F. Bellows, Defendant and Appellant.
    In this case it was decided that the Court may deny a motion to set off, against a judgment, the costs of an appeal from an order on a summary application after judgment, in order to protect the attorney’s claim to a lien on the costs of such proceeding after judgment, although the case be one where a set-off might be enforced by action.
    Heard, in General Term, before Bosworth, Ch. J., and Barbour and Monell, J. J.,
    April 25, 1863;
    decided, May 30, 1863.
    See the points decided, in the index to this volume, under the titles, “ Practice, — Motion, — Set-off.” .
   And see the motion and appeal reported at length, with the opinion of the Court, at General Term, in 16 Abbotts’ Pr., 105.


author: Robertson, J.

text:
    John R. Currie, Plaintiff, v. Edward P. Cowles, et al., Defendants.
    "Where, in case of a breach of trust, the fund remains land, and the plaintiff frames his action to seek specific, equitable relief, joining as defendants with the trustees, third persons who claim an interest in the land, and pending the action the plaintiff files a supplemental complaint, in which he alleges that the land has meanwhile been converted into money, and claims •a judgment for damages, as well as all the relief asked in the original complaint, not inconsistent therewith, the action is still triable by the Court without a Jury.
    Special Term,
    June, 1862,
    before Robertson, J.

      John R. Currie was plaintiff in this action, and Edward P. Cowles and wife, and the president, directors and company of the Housatonic Bank, are the defendants. The suit was commenced October 15, 1855.
    The cause was tried before a Referee, upon whose report a judgment was entered for the plaintiff; but on appeal it was reversed, and a new trial ordered. That decision is reported 6 Bosw., 452, where the allegations of the complaint and the demand of relief are fully stated. The plaintiff now moved that the cause be set down on the day Calendar for trial by Jury.

      L. R. Marsh, for the motion.

      J. C. Dimmick, opposed.
   Robertson, J.

This is a motion by the plaintiff to set down a cause already on the Trial Term General Calendar, and reserved generally, on the Day Calendar; and is opposed upon the ground that it is not a cause in which the plaintiff has a right to insist it shall be tried by a Jury. This ought properly to come up on the trial when a Jury is claimed, but the parties prefer having it decided.

The original complaint was filed principally to recover certain lands held by the defendant Cowles, alleged to have been purchased by him in a fiduciary capacity for the plaintiff, and also damages for other acts of his. Since that time, a supplemental complaint has been filed, alleging that the title to such land has passed from Cowles by virtue of the foreclosure of certain mortgages, and that such foreclosure was procured by him to prevent the plaintiff fro‘m obtaining title thereto; such supplemental bill also avers that the value of said land exceeded the mortgages thereon by a certain sum, which the plaintiff claims as damages, and he also claims therein all relief asked for in the original complaint, not inconsistent with that now asked for. The original complaint had, as parties defendants thereto, the wife of the defendant Cowles and the Housatonic Bank, and prayed that Mrs. Cowles and the Housatonic Bank might be decreed to relinquish all interest in the land in question, and that an accounting might be had of the moneys, and securities which the defendant Cowles had or has for the use of the plaintiff, and pay the balance found due.

Two questions arise on this motion: First, Whether, upon the state of facts as the plaintiff claims they now exist, an action at law could have been maintained by him before the Code; and, Secondly, Whether the effect of the supplemental complaint is to put the parties on the same footing as if the original complaint had been amended, or filed after the foreclosure of the mortgages.

I apprehend that as long as the proceeds of a breach of trust remained in land, the party injured was obliged to go into a Court of equity to reach it, but if they became nloney by a sale to a bona fide purchaser, an action either at law or in equity would lie to recover it. (Brown v. Lynch, 1 Paige, 147; Reed v. Warner, 5 Paige, 650.) And if the mortgages in question had been foreclosed before the commencement of this action, the plaintiff would have Been entitled to commence a suit at law, if the defendant Cowles was his agent. And as it lay with the plaintiff to make it a suit at law or in equity, in other words, to try the action with or without a Jury, the election might still remain with him. But he was compelled to commence an equitable action, because the proceeds of the purchase was land, not .requiring a trial by Jury, and he made parties, Mrs. Cowles and the Housatonic Bank, who are still parties to this action, and in regard to whom no trial by Jury could be had, because no common law judgment could be rendered. The supplemental complaint merely grafts a new proceeding on the old action, on which there may be a different judgment; both causes may be heard together, but the plaintiff may succeed on his original cause of action, and fail on his proposed modification of it. As neither party, therefore, could insist on a Jury trial upon the original complaint and issues, I think they still remain equally debarred from doing so, notwithstanding the supposed change of affairs by the facts stated in the supplemental complaint.

The motion must be denied without costs.


text:
    Thomas Howard, Plaintiff, v. The Orient Mutual Insurance Company, Defendants.
    1. The Court will not entertain a motion to suppress answers in a deposition taken on commission, upon an objection going, not to the regularity of the execution of the commission, but merely to the admissibility of the witnesses’ evidence.
    2. In interrogatories to take the deposition of a witness upon commission, a cross-interrogatory, asking if a log-book was kept, on a certain vessel, and if so, whether it did not contain a statement upon a subject in question, and requiring the witness to produce the log-book, is not sufficient to require the book or a copy of it, to be annexed to the deposition. The witness shoúld be required to annex a copy, if it be desired, to make it an exhibit.
    Special Term,
    October 21, 1862.
    Before Robertson, J.
    The facts of this case are stated in the opinion of the Court.

      A. Hamilton, Jr., for the motion.

      F. Boardman, for plaintiff, opposed.
   Robertson, J.

The motion now made is to suppress depositions taken on a commission issued by the plaintiff, to England, or the answers of a witness to certain interrogatories annexed to such commission.

This action is brought on a policy of insurance, for damages to the plaintiff, for the consumption of merchandise bélonging to him, for fuel to supply the steam engine of the vessel in which they were being carried, which, by stress of weather, was delayed in her voyage, so as to render the consumption of such merchandise, as fuel, necessary.

Certain direct interrogatories annexed to such commission. are directed to be administered to the captain of such vessel, (6th, 7th, 8th, 9th and 10th,) in reference to the existence, consumption and destruction of fuel on board of such vessel, which are answered by him without any reference to any book or memorandum.

The following is put to such captain, and numbered as one cross-interrogatory (2d):

“Did you, or not, keep or have kept on board of said “ steamship, a log-book of the voyages while you were “ master, and if so, where is said log-book ? In whose “ possession or control is it ? Produce the same, if you “ have it? Or state why you do not produce it ? Was or “ not an engineer’s log-book kept on board said steamship ? “If it was, where is it now? When did you last see it, “ and where? In whose possession or control is such log- “ book now ? Does not such engineer’s log-book contain “ a statement of the whole quantity of fuel on board at the “ time of starting on each voyage, and of the daily con- “ sumption of fuel and the quantity remaining, and also “remarks upon the subject of the fuel? If you know “ where such engineer’s log-book is, or can procure it, pro- “ duce the same ? If not, state why you do not produce it?”

The next cross-interrogatory asks the witness, in ease he does not produce the log-books, to state whether his answer to certain direct interrogatories are from recollection ; or if not, from what sources he refreshes his memory.

The witness, in answer to the first of such interrogatories, produced his own log-book, having obtained it from the ship-owners for the purpose. He also said “There “ was also an engineer’s log-book kept on board the said “ steamship; such last mentioned log-book is now also pro- “ duced to him, having been obtained from the owners for “the purpose of this inquiry. He further answers the “ special inquiries as to the contents of such log-book in the affirmative. To the other cross-interrogatory the witness answered that the log-books have been produced, and he had answered the direct interrogatories referred to therein, from recollection and an examination of such logbooks.

I do not think I can now properly entertain the motion to suppress the answers to the direct interrogatories objected to; the objection goes not to the irregularity of the execution of the commission, but the admissibility of the witness’ evidence, as resting on independent recollection or the contents of. the books.

The fact of the engineer’s log-book required being in the custody of third persons, would not be an excuse for not annexing it, or a copy, if produced before the Commissioners. In such cases a copy may be substituted.

(Comm. Bank of Penn. v. Union Bank of N. Y., 19 Barb., 391; S. C., on appeal, 1 Kern., 203; 6 Cow., 444.)

The Revised Statutes provide, (2 R. S., 394, § 16, sub. 3; same statute, 5th ed., p. 676:) “If any exhibits arepro- “ duced and proved before them, they shall be annexed to “the depositions.” The sole question, therefore, is whether the cross-interrogatory in relation to the log-book of the engineer was put in such form as to require it to be made an exhibit; otherwise the witness had a right to look at the book produced and testify, without annexing any copy to his answer. (Steinkeller v. Newton, 2 M. & R., 372.) Of course, as the physical book itself is not required to be annexed, there can be no substitute for it, so as simply to prove the appearance of the book. If the contents were required to be produced and proved, it then became an exhibit. The mere production of the book physically, before the Commissioners, would not enable either party to get at its contents, unless the interrogatory pointed at such contents. The owner of the book might possibly object to an examination, and for that reason it might never have been made, or have been waived; but the interrogatory must require such an examination, in order to satisfy the Court that the Commissioners and the witness have not done their duty, and attempted, at least, to get at such contents by inspection at the time of the examination. I apprehend it is not enough to ask a witness, by an interrogatory annexed to the commission, if a book produced is a certain book of account, and if he answers. in the affirmative, object to the deposition, because it does not have a copy of the contents of such book annexed. Parties are not entitled, on the examination of a witness by commission, any more than in Court, to have the whole of the contents of a book belonging to another person, although identified, inspected. The fact of the existence of an engineer’s log-book was, by such cross-interrogatory, inquired into and proved; also that of its contents; the latter, however, only according to the witness’ recollection of them, because he was not even requested to look at that log-book in testifying. But no one was required to testify as'to the exact contents of such book, or read it, or verify a copy of entries in it. Indeed it would not seem that the character of such entries were of any importance, as their identification by the master would not make them evidence; the more important object seems to have been to lay the foundation for the next interrogatory, and the objection to the witness’ answers to several direct interrogatories, as being derived from such books, and not acts of independent memory. There being no request in such interrogatory to the witness, to look at the contents of the book, or annex a copy of them, it was hardly an exhibit, except in its closed state, as being the book kept by the engineer, in order to refresh the memory of the witness as to its existence. It has always been usual in interrogatories as to written documents, to • require witnesses to annex copies, where they were intended to be exhibits, and I do not see why this, or something equivalent, is not an essential test. The witness could, in this case, have answered all the interrogatory without producing or seeing the book, and his answer would have been properly taken and regular; I do not see why his testifying, in addition, that such book was present, required it, or a copy, to be annexed, any more than if it had been any other physical object.

If the contents of the engineer’s log-book, or the book itself, be necessary for the defendants,¡ they are at liberty to take measures for its production; or if they intended to get'at its contents by this interrogatory, the Court would probably afford them an opportunity of correcting the accidental slip. I do not think, however, the commissioners decided erroneously in supposing the contents of the engineer’s log-book were not required to be annexed by the interrogatory in question; but the motion must be denied with seven dollars costs to the plaintiff to abide the event.


author: MonelI, J.

text:
    John P. Treadwell et al., Plaintiffs, v. Thomas Williams et al., Defendants.
    1. A conveyance, by one member of a solvent firm, of his undivided interest in the real estate of the partnership, to a stranger, whether made upon a sale, or by way of payment of his individual debt, is valid as against the copartners; and they cannot maintain an action to have it set aside on the ground that it was made without their consent, and impairs the credit of the firm.
    2. If creditors do not object, the purchaser takes a good title, and it does not lie with the other members of the firm to object; or, at least, to enable them to do so they must show that the partnership debts exceed the assets, and that there is need of the property in question to provide for the deficiency and equalize the interests of the partners.
    Special Term,
    October 25, 1862.
    Before Monell, J.
    This action was brought by John P. Treadwell and Chester ‘ Lamb, two members of the firm of Treadwell, Whitcomb & Co., against Thomas Williams, Jr., and Virgil Whitcomb, the latter of whom was the third member of that firm. The relief sought was to have a conveyance which Whitcomb had made, of his undivided interest in real estate of the partnership, to Williams, set aside, on the ground that it was made without their consent and impaired the credit of the firm.
    The cause was tried before the Court without a Jury at ' a Special Term, and the following opinion delivered by the Judge, upon the decision, on October 25th, 1862.
    A. J. Vanderpoel, for the plaintiffs.

      W. S. McCoun and J. Burrill, for the defendants.
   MonelI, J.

At the date of the conveyance from Whit-comb to Williams, Whitcomb was confessedly the owner of five-twelfths of the copartnership property and effects of the firm of Treadwell, Whitcomb & Co. This property consisted of the lease of the St. Nicholas Hotel, furniture and good will, and also of certain real estate, which during the partnership had been purchased, with partnership funds, for partnership uses and purposes, and was occupied and used in conjunction with their leasehold property for their hotel and partnership business. I have no difficulty in finding that this real estate, so purchased with partnership funds, and for partnership purposes, became and was partnership property, and is therefore subjected to all the rules governing partnership property of a personal nature, except those of transmission and descent. I am not prepared to say that the circumstance of its having been purchased for partnership purposes and with partnership funds necessarily converts it into personal estate. The law on that subject is unsettled, and I believe I am safe in declaring, that in this State the Courts with much uniformity have always held such property to be real and not personal estate. (Buchan v. Sumner, 2 Barb. Ch., 165.) It is not necessary, however, to consider that question here. It is quite immaterial whether it be real or personal estate. It is enough that it is partnership property, and that Whit-comb’s interest has been conveyed to his individual creditor.

There is no allegation in the complaint, nor was there any proof before me, that the firm are insolvent. On the contrary, I think the proof shows that they are not insolvent. Mr. Treadwell himself testified that the firm could pay their debts, and he rejected any idea that they were or could be supposed to be insolvent.

The defendant Williams was a creditor of Whitcomb, to the amount of $15,000, which formed a part of the consideration of the deed. There was evidence that Williams, at the time of the conveyance, paid Whitcomb the further sum of $20,000, making a total consideration of $35,000. There was therefore sufficient consideration to uphold the conveyance, as between the parties to it, and if Whitcomb had the right to convey, Williams gets a good title.

Under this state of facts the plaintiffs seek to set aside the deed, upon the sole ground, that, the premises conveyed being partnership property, Whitcomb could not convey his interest without the consent of the other members of the firm.

The creditors of the firm are not actors in their own behalf, seeking to compel a devotion of the copartnership property to the payment of the partnership debts; but a member of the firm, upon the allegation that there were creditors, and that the property conveyed was needed to furnish security for loans required by the firm in carrying on its business, seeks to compel a cancelment of a deed by his copartners as interfering with the successful prosecution of their joint business.

The law is well settled that partnership property must be applied to the payment of partnership debts, (Wilson v. Robertson, 21 N. Y. R., 587,) and neither can one, nor all the members of a firm, by any other disposition of their joint property, deprive their creditors of this right. Hence, one partner cannot pledge or convey the partnership property as security for his individual debt, so as to defeat the partnership creditors of their equitable lien. But in the absence of creditors of the firm interposing to ask the aid of the Court to protect their lien, I do not understand that a member of a firm, as between himself and partners, may not dispose of his interest in the firm’s property, so as to give a good title to the transferee, whether he be his individual creditor or a purchaser for value.

It was in evidence before me that at all times the firm have been heavy borrowers of money, carrying along a floating debt of upwards of $250,000, and needing all their property to furnish security for loans and indorsements. But there was no evidence given or offered, that there were any creditors who were in a position or desired to enforce their equities against this property, or to compel its application to the payment of the partnership debts. Nor do the plaintiffs ask for a dissolution of the copartnership and a winding up of the partnership concerns, nor even for an account by Whitcomb, of the proceeds of the sale and a restoration thereof to the partnership fund. The only allegation upon which the plaintiffs found their claim to the relief sought by their complaint, is, that Whit-comb could not convey, and that Williams took no title. And they assert that, at their suit, the conveyance should be set aside and declared null and void. It may be that if this suit had been instituted by one of the creditors of the firm, who had failed to obtain satisfaction of his debt out of the remaining partnership property, such creditor, upon the allegation and proof of the insolvency of the firm, would be entitled to a judgment avoiding this conveyance, and declaring it to be null. That would be so, upon the principle already stated. But it seems to me that the right of one partner to transfer to a purchaser his interest in the partnership property, does not admit of argument or doubt. If creditors do not object, the purchaser takes a good title, and whatever effect such disposition may have, as working a dissolution of the copartnership, (if such would be the effect, Story on Part., §§ 306, 308,) or otherwise, it does not lie with the other members of the firm to object. I have looked in vain for any case which goes to the length of declaring such a transfer Void at the suit of the remaining partners; but the books are full of cases where such a transaction has been adjudged a fraud upon the rights of creditors, where the creditors themselves have been the actors.

The cases most relied on by the plaintiffs’ counsel, in support of their action, are Dyer v. Clark, (5 Met., 562,) Richardson v. Hastings, (7 Beav., 301,) and Ormsbee v. Davis, (5 R. I., 442.)

In Dyer v. Clark the bill was by the surviving member of a firm against the administrators, widow and minor children of the deceased member. The deceased, in his lifetime, had conveyed his interest in certain real estate of the firm held as partnership property. The bill did not seek to set aside the deed, but to have the proceeds of the sale applied to the payment of the partnership debts. Here was a partnership dissolved by the death of one of its members, and it was properly decided that the survivor, being primarily liable for the' partnership debts, was entitled to the custody of the partnership property and to the proceeds of such as had been disposed of by the deceased member, to enable him to satisfy the claims of creditors. The opinion of the Court contains no dictum, nor is there any principle to be evolved from the case, which sustains the position of the present plaintiffs.

In Richardson v. Hastings, the bill was filed by R. in behalf of himself and other members of a club, against Hastings and Emly, also members, for an account of the proceeds of club property sold by them. The bill also prayed for an account of the other assets of the club, and a dissolution and winding up of the concerns of the club. The bill did not seek to reach the property conveyed, but merely an account of the proceeds. The accounting was ordered, it being a proper case for such a judgment. The master of the rolls goes fúrther than any of the other cases, and asserts it to be a principle of Courts of equity to entertain a bill between partners, to settle a question which may arise between them without winding up the concerns of the partnership.

In Ormsbee v. Davis, the suit was brought by an attaching creditor of the defendants. The defendants’ firm of James W. Davis & Co., composed of J. W. Davis and Thomas M. Hathaway, were indebted to the firm of Watson & Field, who had assigned their property to S. J. Watson, for the benefit of their creditors. Davis, one of the firm of Davis & Co., in the absence and without the consent or concurrence of his copartner, Hathaway, made a general assignment in the name of .the firm, of all their copartnership property to S. J. Watson, for the benefit of the creditors of Davis & Co., giving a preference to the claim of Watson & Co. Subsequently, Davis, in the name of his firm, but again in the absence and without the consent of his partner, executed to Watson an absoMte bill of sale of certain specific property of the firm. The assignment and bill of sale, were attacked by the plaintiff, a creditor of the firm. The Oourt held the assignment made by one partner, without the concurrence of the other, void as to the creditors of the firm. But the bill of sale executed under similar circumstances was upheld. Ames, Oh. J., says:'“The subsequent bill of sale of a portion of the copartnership property to the garnishee, in payment of, or rather, as he explains it, in security for the debt due from the defendants to Watson & Field, which had been assigned to him, seems to have been within the competence of either of the copartners, without the knowledge or assent of the other, and must be held a rightful appropriation of the property embraced in it, so far as needed, to the payment of that debt.”

Applying the principle of these cases to the one now under consideration, we see that they fall far short of establishing the plaintiffs’ right to the relief they demand. They do not ask. a dissolution of the partnership, nor an accounting, by Whitcomb, of the proceeds of the sale to Williams. They do not allege the insolvency of the firm, nor the inability of Whitcomb to respond for Ms share of the copartnership debts. Before it is ascertained that the debts will not all be paid, or that the value of the interest conveyed to Williams is less than the value of Whitcomb’s interest in the remaining property of the firm, after the payment of the firm debts, I am asked to declare the deed to Williams void, and to compel him to convey the property back to Whitcomb, that it may be used, not in payment of firm debts, but as security for the firm’s floating debts. It appears quite clear to me that the plaintiffs are not in a condition to obtain such relief. They have failed, I think, to make out a case authorizing any interference with the conveyance to Williams, which shall deprive him of his right to hold the property.

It was supposed by the plaintiffs’ counsel that the equities and rights of creditors might be worked out through the partners; and such, undoubtedly, is the text of the elementary writers. But I apprehend that such rights and equities must be sought tor by the creditors themselves, working them out through the equities of the partners, to have the partnership property applied to the payment of the partnership debts. In other words, that the creditors must apply to have the equities of the partners enforced and not the partners themselves. That is what I understand to be the meaning of the elementary writers, that the rights of creditors may be worked out through the partners.

I cannot discover that any fraud is to be imputed to Williams. The evidence has warranted me in finding, as a fact, that he knew that the property was owned by Whit-comb, jointly with the other members of his firm. But as Whitcomb had the right to convey the property, so Williams had the right to receive it; and he cannot be deprived of that right, except, perhaps, at the instance of creditors of the firm. If I am right in my view, that none but creditors can object to the validity of this conveyance, then it is wholly immaterial whether Williams took it with notice that it was partnership property, or whether there was a sufficient consideration to uphold it. As between Whitcomb and Williams, it was effectual to vest the latter with a valid title to all the interest the former had in the property. Had the suit been instituted by creditors of the firm, the l>ona fides of the transaction might have been involved.

But if the views which I have thus briefly stated, of the rights of partners in respect, to their copartnership property, should not be sound, there is another reason why, under the pleadings and proofs in this case, the action cannot be sustained. I think it cannot be questioned that whatever interest in the partnership property may remain to Whitcomb after the payment of the partnership debts, may be transferred by him to his individual creditor. Therefore, until it is shown that the debts exceed the assets of the firm; and that there is need of this property to provide for a deficiency, and to equalize the interests of the other partners in the capital of the firm, this conveyance cannot be disturbed. Ho such state of facts exists. On the contrary, the clear weight of the evidence is, that the firm, except, perhaps, upon a forced sale, can pay its debts and reimburse its members their capital. Ho danger is apprehended, or at least stated, that the creditors will urge their claims to judgment or subject the partnership property to a forced and sacrificing sale; and until the happening of such an event, the plaintiffs have no cause of complaint.

For all these reasons I am satisfied that the plaintiffs possess no equities which would authorize or justify the Court in interfering in their behalf.

The defendants must have judgment, dismissing the complaint, with costs.


author: Monell, J.

text:
    Frederick Hornby, Plaintiff, v. William Gordon, Defendant.
    1. The provision of the Code of Procedure — that in actions for recovery of real or personal property, third persons, having an interest in the subject matter, may be brought in as parties, upon their own application — is only intended to extend the power formerly possessed by Courts of equity, in this respect, to the legal actions designated; and its application is confined to the class of cases in which a bill of interpleader would have accomplished the same end.
    2. In an action brought by a vendor of goods, to recover possession of them, on the ground of fraud on the part of the purchaser, third persons claiming, under the purchaser, by virtue of contracts with him, and in hostility to each other, should not be granted leave to come in as parties.
    Special Term,
    November, 1862.
    Before Monell, J.
    In this action two motions were made, under section 122 of the Code of Procedure, by different persons, to be made parties defendants.
    The action was for the recovery of the possession of specific personal property. The facts, as gathered from the papers, were as follows:

      About the 14th of March, 1862, the plaintiff sold to the defendant twenty-five hogsheads of tallow, to be‘paid for in cash on delivery. The defendant, without the knowledge or consent of the plaintiff, obtained possession of the tallow, without making payment, placed it on board the ship Equator, then lying at Pier Ho. 16, East Eiver, in the City of Hew York, and procured from the captain triplicate bills of lading. One of the bills was left with the captain, and the other two were delivered to the firm of De Eham & Co., of this city, who made an advance thereon, to the defendant, of the sum of $2,148.50.
    On the 15th of March, this action was commenced, and the property taken by the Sheriff, under a requisition of claim and delivery. Whether it had been delivered to the plaintiff did not appear.
    On the 17th of March, Meritz Von Therlew, the captain of the ship, served upon the Sheriff a notice that he claimed the tallow; that, as master, he had become liable to the consignees for the value of the tallow, and that he had a lien thereon for freight and charges.
    On the 18th of March, De Eham & Co. served on the Sheriff an affidavit, stating the advance made by them upon the bill of lading, and a notice requiring him to deliver the tallow to them, and not to the plaintiff.
    The master Therlew, and the persons composing the firm of De Eham & Co., now made separate applications to be made parties defendants to the action.
    The merits of the respective claims of these parties were not involved in these motions.

      William Betts, for the applicants.

      Edward Fitch, for the plaintiff, opposed.
   Monell, J.

The section of the Code under which these motions are made (§ 122) provides that “when, “in an action for the recovery of real or personal pro- “ perty, a person not a party to the action, but having an “ interest in the subject thereof, makes application to the “ Court, to be made a party, it may order him to be “ brought in by the proper amendment.”

This provision is new, and has not, except in one case, that I have been able to find, received a judicial construction. The codifiers, in their notes, (Code, as reported, p. 251,) say:, “ The object of this section is to save the “necessity, in most cases, of an action to compel two “parties, claiming the same thing, to settle the contro- “ versy between them by interpleading. . The interpleader ■ “ act in England was passed for the same purpose.”

Under the practice, as it prevailed before the Code, the Courts possessed no power, in an action at law, either to bring in parties necessary to a complete determination of the controversy, or to allow a substitution of defendants, (except in the single action of ejectment, 2 R. S., 342,), or to allow parties claiming an interest, in the subject of the suit to apply to be made defendants. It was otherwise in suits in equity, to the extent of allowing other parties to be brought.in. But this was only done where it was necessary that other parties should be before the Court, in order to a complete determination, of the- controversy. (1 Barb, Ch. Pr., 321.)

The Legislature has deemed it proper'to empower the Courts to add parties in all actions; and in those for the recovery of real or personal property, to allow persons-not parties, to apply to be made such. They may, also*, in these, and in actions upon contracts, upon the application of the defendant* allow a person, not a party to the action, who makes a claim to the same debt or property, to be substituted as defendant. But I do not think the Legislature intended to extend this power beyond that which was possessed by Courts of equity, in all cases which' came under their cognizance, except in its application to certain actions at law; and that they meant to confine it, in principle and practice, to that class of cases where a bill of interpleader would have accomplished the same end. The section of the Code, as enacted, is the same as reported by the codifiers, and their construction of its intended operation and effect is significant of the intention of the Legislature.

Assuming, then, that such was the design of this provision of the statute, let us apply the principles of inter-pleader to the applications made on these motions.

A bill of interpleader was allowed, where the complainant claimed no relief against either of the defendants, but where the defendants claiming of him the same debt or duty, by different or separate interests, he was uncertain with which of the claims he ought to comply; in which case he could apply to the Court for leave to pay the money or deliver the property to the one to whom it of right belonged, and thereafter be protected from the claims of both. (2 Barb. Ch. Pr., 117.) The object of the bill was to protect an innocent party against conflicting claims, where a recovery by one might not protect him against a recovery by another. It never, however, was allowed for any other purpose; and I cannot believe the Legislature intended to enlarge or extend this remedy of interpleader to cases not strictly coming within its principles. It cannot be that it was the design to stop the machinery of trials by letting in various and conflicting claims to the same property, whenever they might arise. But even if it were so, the power should be exercised by the Court with great caution, and with due regard to the rights of parties. Especially ought it not to be exercised where there are other and adequate remedies left to claimants'.

In the case before me, the claims presented by the master and by the persons who made the advance, are different and inconsistent with each other. They arise under different rights, depend upon different principles, and are each antagonistic to the claim of the plaintiff. Each claim the property; one as owner absolute, another in virtue of a lien for freight and charges, the third on account of advances. But one can sustain the right to hold the property. The others must fail; and I cannot well see how, upon one trial, without much embarrassment,' all these diverse and conflicting claims can be disposed of. The applicants have their remedies against the Sheriff, which they have preserved by notice to him of their claims. These remedies, it seems to me, they should pursue in this case.

The motions must be denied, with five dollars costs, to be paid by each of the applicants to the plaintiff.


text:
    The Bank of Mutual Redemption, Plaintiffs, v. William Sturgis, Jr., et al., Defendants.
    1. Where one of several creditors of an insolvent, who all had an equitable lien on goods and securities of his in the hands of his factors, issued an attachment, and served it upon the factors, and they, being also insolvent and desiring in good faith to have the fund applied equitably among their consignor’s creditors, procured a suit to be brought against themselves and him for that purpose, by certain of such creditors other than, the plaintiffs in the attachment, the suit being on behalf of all such of the creditors as should come in and contribute to its expenses;

      Held, that the instituting of such suit and the appointment of a Receiver therein, could not be deemed collusive, and a reason for the interference of a Court of equity in behalf of the attachment creditors.
    2. A bailee of goods having a lien thereon for a sum far exceeding their value, who, when the goods are attached in his hands by a creditor of the bailor, certifies, in good faith, that he holds no goods for the benefit of the latter, does not thereby forfeit his lien.
    Special Term,
    November, 1862.
    Before Monell, J.
    This action was brought by the plaintiffs, a corporation of the State of Massachusetts, against William Sturgis, Jr., William Shaw, Henry Shaw, Latimer Bailey, (composing the firm of Sturgis, Shaw & Go.,) and Robert Rennie, defendants. The plaintiffs had previously obtained judgr ments in the Supreme Court against Rennie, upon drafts held by them, which were drawn by him on the firm of Sturgis, Shaw & Co., and by them accepted.
    In their complaint in this action, the plaintiffs, suing on behalf of themselves and other creditors to the same relief, alleged the recovery of such judgments; that Rennie had •consigned large quantities of merchandise to Sturgis, Shaw
      & Co., for sale, and that Sturgis, Shaw & Co., had accepted the drafts mentioned, and others held by other persons, in advance of sales, and held the goods and proceeds, and also a bond and mortgage given to them by Bennie, as security for such advances; that the plaintiffs had, in their actions in the Supreme Court, attached the property of Bennie, who was a non-resident, and served the attachments on Sturgis, Shaw & Co., on various days on and between the 7th and 26th days of February, 1862, who certified to the Sheriff that they held no property of Bennie for his benefit, and were not indebted to him; that these certificates were false and fraudulently intended to hinder the plaintiffs of their remedy; and they prayed for an injunction and the appointment of a Beceiver, and that the respective liens on the goods and mortgage might be ascertained and determined, and the fund applied accordingly.
    The proceedings in relation to the appointment of a Beceiver in this action are reported, ante, p. 608.
    The present action was commenced about the 11th day of March, 1862. About the 14th of February, previously, Gustavus A., and Ernest Scheldt, also creditors of Bennie, holding similar drafts, had commenced an action in this Court on behalf of themselves and all other like creditors who should come in, for similar relief; and on the 17th of the same month, perfected the appointment of a Beceiver. As soon as the plaintiffs in the present action were informed that a Beceiver had been appointed in the suit brought by the Scheidts, they applied to the Court, on petition in that suit, stating their attachments and judgments, and asking to be brought in as defendants therein. This application was denied, and, on appeal, the order was affirmed by the Court at General Term in December, 1862.
    The object of the present action was to secure a priority over the claims of the Scheidts, to which the plaintiffs deemed themselves entitled by reason of the attachment proceedings in the Supreme Court.
    The cause was tried, and^the following decision rendered, in October and November, 1862.

      F. N. Bangs and J. M. Van Cott, for plaintiffs.

      A. F. Smith, for defendants.
   Monell, J.

The object of this action, as I understand it, is to obtain the aid of the equitable powers of this Court, to remove alleged obstructions which the defendants, by their acts, have interposed to the effect and operation qf the attachments issued in the actions at law. Beyond this, the general scope of the suit is the same, as in the suit of Scheldt against the same defendants. Both the suits are brought by holders of Bennie’s drafts accepted by Sturgis, Shaw & Co., seeking to secure the application of the consigned property to the payment of those drafts and to prevent its seizure by the creditors at large of Sturgis, Shaw & Co.

The alleged obstructions are, first, the appointment of a Beceiver in the Scheldt suit; and second, the certificate given by S., S. & Co., to the Sheriff, upon receiving a copy of the attachments.

There are allegations of fraud and of fraudulent practices on the part of S„ S. & .Co. towards the plaintiffs, in respect to obtaining renewals of some of the drafts, and in attempts to effect a compromise with the holders of the Bennie drafts. But the evidence has failed to sustain any of these allegations. Indeed, I feel justified in saying that I am fully satisfied that S., S. & Co. have, so far as the evidence shows, dealt fairly, justly and honestly with the plaintiffs, and have not sought to deprive them of any of their rights, or to defeat any of their lawful suits. The compromise which they desired to effect with the holders of the Bennie drafts was honorable and just. It recognized the trust fund and sought to apply it equally to those who in equity were entitled to it. It was within the power qf S., S. & Co. to have deprived the plaintiff, and other holders of thé Bennie drafts, of this property, by a sale or assignment for the benefit of creditors. But they desired to prevent their general creditors from partaking of it, and to devote it to creditors who had an equitable lien upon it.

It is claimed that the suit brought by Scheldt and the appointment of a Receiver therein was collusive between the parties; was a fraud upon the rights of the plaintiffs, and was instituted for the purpose of defeating the lien of the plaintiffs’ attachments. So far as there is any question of fact involved in these allegations, I have not had any difficulty in finding against the plaintiffs. I entertain no doubt that the object of the suit Was to carry out compulsorily what S., S. & Co. had failed to obtain through their compromise paper ; and to distribute, by the judgment of the Court, the consigned property to and among the holders of the Rennie drafts. It is quite immaterial that this suit was instigated by S., S. & Co. The evidence as to that is slight and perhaps not sufficient to justify such conclusion. They could have interpleaded between their creditors, the holders of the Rennie drafts, and their general creditors, in respect to this property; and I see no reason why they could not have made a special assignment of the trust property to pay the Rennie creditors. If so, then why not institute an action in the name of one of these creditors to obtain the same end? As has been already said, the relief demanded by the plaintiffs in this action, and that sought in the Scheldt suit is the same; and except so far as the plaintiffs may have acquired some preference or priority through their attachments, they could have obtained all they otherwise ask for, by coming in and becoming a party to the Scheldt suit.

In this view, I am of opinion that the institution of the Scheldt suit, and the appointment of a Receiver therein of the consigned property and mortgage, furnished no reason for the interference of a Court of equity, and does not, per se, defeat or deprive the plaintiffs of any lien or right acquired by force of their attachments.

The main question thereforé is, did the plaintiffs, by their attachments and the levy thereof, and the certificate given to the Sheriff by S., S. & Co., acquire any lien upon, or preference or priority of payment out of the consigned goods and mortgage, which enables the plaintiffs to demand the judgment of this Court in aid of his judgments and executions at law ?

The goods consigned, and the mortgage executed, by Bennie to Sturgis, Shaw & Co., were held as security for advances made, and for the payment of any ultimate debt from Bennie to them. This, therefore, was a bailment, and not a purchase. The bailees, in this case, had a lien upon the consigned goods and mortgage', to the extent of any indebtedness of Bennie to them. It was somewhat urged at the trial, that the outstanding acceptances of S., S. & Co. did not constitute such a debt as would authorize them to retain these goods as against the creditors of Bennie. There is no force in this. So long as the liability of 5., S. & Co. continued to the holders of those acceptances, their right to and lien upon the consigned property remained.

At the time of the service of the attachments, the unpaid acceptances of S., S. & Co. amounted to about $230,000, and they had in their possession about $65,000 of consigned property, and a mortgage for $150,000, upon which they had borrowed $30,000.

The attachments were served on S., S. & Co., on the several days upon which they were issued, by leaving a copy with them certified by the Sheriff. Ho levy upon any property appears to have been made at that time, but a certificate, under section 236 of the Code, was demanded.

5., S. & Co., accordingly certified to the Sheriff, that they did not, at the time of the service of the attachment, nor at any time since, nor did they then hold any property in their possession, or under their control, for the benefit of Eobert Eennie, nor was there any debt owing by them to Eobert Eennie.

That S., S. & Co. were not mistaken in regard to the legal title to the property consigned by Eennie to them, cannot be pretended. They undoubtedly supposed, that having advanced to Eennie much beyond the value of the goods, Ms interest in them had ceased. Such, practically, was the effect, but until the goods were disposed of by S., S. & Co., the legal title to them remained in Rennie. S., S. & Co.had their lien; could sell at pleasure, and give a good title to the purchaser; but Rennie owned the goods, subject to the lien and right of his factors. Commission merchants as a class of factors, mating advances to nearly or quite the value of the goods, are treated as the owners. (Story on Agency, § 111.) They sell .in their own name, and deal with the property in every respect as if it were their own. Still they have but a special property in the goods, the general property remaining in the principal.

I think it is clear, therefore, that, at the time of the service of the attachment, S., S. & C.o. had property in their possession belonging to Rennie, upon which they, as factors, had a subsisting lien to its full value; rendering the interest of Rennie in it of no value whatever. For the reasons stated, the certificates given by S., S. & Co. to the Sheriff were literally and technically untrue; but I cannot find from any of the proof in the case that they were given with any fraudulent or dishonest design, or with intent to hinder, delay or obstruct the plaintiffs in the pursuit of their remedies under their attachments. The technical falsity of these certificates, without a knowledge of the value of the consigned property, and the extent of the factors’ lien, may have well induced the suspicion that there might have been some fraudulent motive. But the fact is now thoroughly established that the advances far exceeded the value of the goods, and that the interest of Rennie was, in reality, nothing whatever. If S., S. & Co. had certified that they had in their possession goods of Rennie of the value of $65,000, upon which they had a lien for $230,000, they would have complied strictly with the law; but no one can say that the plaintiffs would have gained any consolation from such a certificate. I am warranted, I think, in saying that the certificate which they did give was not given through any corrupt design or intent to injure the plaintiffs, but through a mistaken notion of their interest in the goods.

It is claimed, however, by the plaintiffs, and herein lies the strength of their action, that the giving of this technically untrue certificate was a waiver by S., S. & Oo. of their lien, as factors, upon the goods. If this were so, it might be that the lien of the attachments would be prior and superior to the title acquired' by the Receiver, and a Court of equity might enforce such priority in aid of judgments and executions at law. But it is clear, I think, that such would not be the effect of it. The learned Chief Justice, when this case was before the General Term, upon an appeal from an order denying a motion for a Receiver, said: “It is not easy to see how the giving of that certificate can affect rights which had previously accrued to third persons who had no agency or participation in that act.” And I understand it to have been conceded at the trial, that the creditors holding the acceptances of S., S. <& Co., constituting their lien, had an equitable right to the consigned property. I assume this to be so, and for the purposes of this action, it is a complete answer to the plaintiffs’ demand for relief. Such equitable right could not be divested by any act of S., S. & Co., which, as between them and their general creditors, might operate as a waiver of their lien.

But assuming this not to be so, have S., S. & Co., in effect, waived or lost their lien by giving to the Sheriff a certificate that they had not any property in their possession belonging to Robert Rennie ?

I know of no elementary law or adjudicated case in which such an act has been declared or held to be a waiver of the factors’ lien. The most that can be said is, that the denial of S., S. & Oo. that they had any property of Rennie, might operate as an estoppel on them. The elementary treatises and cases to which I am referred by the plaintiffs’ counsel, merely establish the general principle that a claim by a factor inconsistent with his actual right, may work a waiver of his lien. I do not regard the certificate given to the Sheriff as setting up any claim to the goods, incompatible with the right of S., S. & Co. They say they hold no property “for the benefit of Bennie.” This in one sense was true. They held the property for the benefit of Bennie’s creditors, who had an equitable right to its application to the acceptances held by them.

In the absence of all fraudulent design; they having a not unnatural misconception of the nature of their rights and interest in the property, and a desire to have it distributed among the holders of the Bennie drafts, I cannot attach so grave importance to an act harmless in itself, as to give it the effect of a waiver of their lien.

The section of the Code which provides for the giving of a certificate, (§ 236,) also provides, that if the individual “refuse to do so, he may be required by the Court or Judge to attend before him and be examined, on oath, concerning the same;” and it has been held, that where a party served with an attachment certifies he has no property, it may be regarded as a refusal to give the certificate, if it can be satisfactorily established that the certificate is untrue. (Carroll v. Finley, 26 Barb., 61.) This remedy could have been pursued by the plaintiffs, and the nature of 8., S. & Co.’s interest in the consigned property ascertained in a much more summary and economical mode than the one they have adopted in this action.

Upon a careful examination of all the questions raised by counsel, with the aid of the evidence in the case, I cannot bring my mind to any result favorable to the plaintiffs. S., S. & Co. do not seem to me to have lost their lien, and the right of the receiver to hold the property as against the plaintiffs in this action is unaffected.

As this view-disposes of all the equity of the plaintiffs’ complaint, the defendants must have judgment dismissing the complaint with costs.


author: Barbour, J.

text:
    William Niblo, Plaintiff, v. George Harrison (by his guardian ad litem) et al., Defendants.
    1. Where, pending a suit brought by a creditor to reach the assets of his debtor, the latter is, by proceedings previously commenced in another Court, adjudged to be an habitual drunkard, and a committee is appointed of his estate, the Court in which the former suit is pending cannot properly proceed to final judgment.
    2. The plaintiff in such case, if he commenced his action in good faith, may be permitted to retain it; but his proceedings therein should be stayed, until the reformation of the defendant and the discharge of his committee, if such event should occur.
    3. If a Receiver has been appointed, he should be discharged, on paying the moneys in his hands into Court.
    4. It seems, that if the suit were in the nature of an action at law, the plaintiff might be permitted to proceed to judgment, upon which he may apply to the Court having jurisdiction of the estate to require payment from the committee.
    Special Term,
    March, 1863.
    Before Barbour, J.
    . This action, which was in the nature of a creditor’s bill, was brought by the plaintiff against George Harrison, Henry Harrison, as the Receiver of the estate and effects of the said George Harrison, Horace B. Olaflin, William H. Mellen, Hathaniel Miller, Daniel H. Oonkling and Henry Stone, the latter of whom were judgment creditors of the defendant, George Harrison.
    The complaint alleged that the plaintiff had obtained a judgment against the defendant, George Harrison, upon which some forty parcels of land in the City of Hew York, belonging to the judgment debtor, were sold by the Sheriff, on execution; that such debtor had no further property liable to sale on execution, and that the execution had been returned unsatisfied as to a considerable amount, which still remained due upon the judgment; that the defendant, Harrison, was still in the possession of the premises, and in the receipt of the rents, amounting to some twenty or thirty thousand dollars a year; and that several months of the time fixed by law as the period within which the property might be redeemed from the Sheriff’s sale was yet unexpired; and the plaintiff prayed for the appointment of a Eeceiver of the rents, with directions to apply the same, or so much thereof as might be necessary, to the payment of the balance remaining due upon the judgment.
    Before the action was brought, proceedings had been instituted in the Supreme Court, by petition, presented by the friends of. the. defendant, George Harrison, but without the actual knowledge of the plaintiff in this action, for the purpose of having Harrison declared an habitual drunkard, and obtaining the appointment of a committee; upon which proceedings a commission de inquvrendo had been issued, and so far executed that a Jury-had found the defendant to be an habitual drunkard.
    After the commencement of .this action, and before an answer was put in, the report of the commissioners, in those proceedings, was made and confirmed; and, thereupon, a committee of the drunkard were appointed, who duly qualified, and entered upon the discharge of their duties. An application was then made to one of the Justices of this Court, founded upon an affidavit setting forth the foregoing proceedings in the Supreme Court and under its order, for the appointment of a guardian ad litem to defend this suit for and on behalf of the defendant Harrison, and, also, that a Eeceiver of the rents, pendente lite, be appointed; which application was granted.
    The answer interposed by the guardian ad litem, so appointed, set up all the above proceedings in the Supreme Court, including the acceptance of the trust by the committee. Ho answer was put in by the defendants, the judgment creditors.
    Upon the trial at Special Term, allthematerial facts alleged in the complaint and answer, respectively, were fully proven, and the case was argued and finally submitted for judgment.

      John Townshend, for the plaintiff.

      B. F. Dunning, for the defendant Harrison, and his guardian ad litem.

   Barbour, J.

As-between the plaintiff and the defendant Harrison, considering the latter as of sound mind and unembarrassed by the proceedings before the Supreme Court, the plaintiff, is* doubtless, entitled to the relief he asks for in his complaint. There is, certainly, no reason why a. judgment debtor should be permitted to receive and enjoy the rents of real estate, to the amount of thousands of dollars; after his legal estate in the premises has been divested by a sale on execution, to the exclusion of creditors whose judgments remain unsatisfied. But the question here is-, whether the defendant has such a standing- before the Court, or is so represented in this action by the guardian who has been appointed to defend his interests, as will authorize the pronouncing of a judgment against him.

Under the old system of jurisprudence in this State, it was well settled, that, upon and by the appointment of a committee, on the return of a commission de pnquvrendot all the estate of the lunatic dr habitual drunkard, together with the guardianship - of his person, became and was wholly vested in the Court making such appointment, and that the drunkard or lunatic was, thenceforth, incapable to make a valid contract, or to transact any business whatever; that no person other than the committee would' be allowed to meddle with the property without their consent, and that any one, even a Sheriff with an execution in his hands, would be punished for contempt if he interfered with it; that no suit in equity or action at law could be brought against the drunkard or lunatic subsequent to his being so declared, nor, except upon leave granted by the Court of Chancery on petition, against the committee; and that, where an action at law had been brought against a-lunatic before the report of the commissioners, but after the filing of the petition, such action would be stayed by injunction, if brought to the notice of- the Court of Chancery. (Matter of Heller, 3 Paige, 199; Matter of Hopper, : 5 Id.; 489.) Where, however; the progress of such action was not stopped by injunction, but the same proceeded regularly to judgment, the judgment was held not to be irregular and void; although, as we have seen, the creditor would not be permitted to enforce it without leave of the Court, granted upon petition. (Id.; Robertson v. Lain, 19 Wend., 649; Clark v. Dunham, 4 Denio, 262; Brown v. Betts, 13 Wend., 29.)

Although many of the distinctions between suits in equity and actions at law are now abolished, those rules in regard to lunatics and habitual drunkards are still as operative and binding as when first promulgated, for the reasons upon which they were founded remain unchanged.. If* therefore, the action now under consideration was in the nature of an action at law under the former system, the plaintiff might, probably, be entitled to recover his judgment ; a judgment, to be sure, that he could not enforce by execution, but which would enable him to apply, by petition, to have it paid by the committee. The case in hand, however, is not an action at law, but is, entirely, a suit in equity by which it is sought to obtain the payment of the plaintiff’s judgment, through the equity powers of the Court, after its power as a law Court has become exhausted upon its final process of execution; and the judgment prayed for is, in few words, simply that a Receiver, to be appointed by this Court, shall take out of the hands of the committee, the property which has become vested in the Supreme Court, by the proceedings against the defendant as an habitual drunkard, and apply it to the payment of this claim.

I have no hesitation in deciding that this Court cannot, with propriety, render a final judgment in this action, as the matter now stands. If there was no other reason, the rules of comity, always observed toward each other by Courts of concurrent jurisdiction, would prevent the granting of a decree, as prayed for; while, on the other hand, it seems equally clear that the complaint should not be dismissed, but the plaintiff ought to be permitted to retain Ms suit, commenced* as it was, in good faith, so, that- he may proceed to judgment against the defendant, upon Ms. reformation and the discharge of his committee, in case that event shall occur.

An order must, therefore, be entered, directing the Eeceiver, who has been appointed pendente lite, to pay into Court, to the credit of this action, all the moneys which shall have come to his hands, as Eeceiver herein, less his commissions; and that, upon such payment, the order appointing him be set aside and vacated; and also providing and directing that all further proceedings in this action be stayed, until the committee, so appointed by the Supreme Court, shall have been discharged, or until such further order of this Court, in the premises, as may be made, upon the motion of either party, on notice to the other.

Order accordingly.


text:
    Isaac M. Wright et al., Plaintiffs, v. Samuel Milbank, Jr., Defendant.
    The Court will not, in the exercise of its discretion, grant a third trial of an action to recover possession of lands, to a party who, upon the two previous trials, has lost his case, by overlooking a point of law, or conceding a fact, or by omitting to seek a remedy, by an appeal from an erroneous ruling on an unimportant question of evidence, unless he is shown to have been thrown off his guard. The fact that the defendant, in another cause, tried subsequently, succeeded, by raising the objections which were not raised in the present case, is not, necessarily, ground for granting the application.
    Special Term,
    May, 1863.
    Before Robertson, J.
    This was a motion for a new trial, in an action in the nature of ejectment. The facts are fully stated in the opinion of the Court.

      R. H. Shannon, for the defendant.

      S. E. Lyon & T. Westervelt, for the plaintiffs.
   Robertson, J.

This is an action to recover possession of certain lands in the City of Hew York. It has been twice tried, once Tby the Court without a Jury, and once by a Jury; in both cases the issues were found for the plaintiffs. After the first trial, a second one was obtained, under the statute, on payment of costs, without reference to the merits. A third trial is now asked for, upon the ground of a different result in an action broug’ht for an adjoining piece of land, tried since the issues in this.

The subject of controversy seems to have formed part of a larger piece of land, laid down on maps in possession of officers of the Corporation of the City of Yew York, who were the source of the defendant’s title, as a street called Cheesman street, sixty feet wide. The principal question involved in the trial of the issues in this cause, on both occasions, seems to have been, whether the site of half such street, including the premises in question, were embraced, or not, in a grant by the Sheriff of Yew York, on a sale by him, on execution against Medcef Eden, from the grantees in which the plaintiffs claimed title? In other words, whether such grantees, or those claiming under them, owned such half, and contributed it to form a public highway merely, which, being disused", lapsed back to them ?

The existence of such street as a highway, and therefore its formation by contributions of adjoining owners, was sought to be proved, on both trials, by admissions supposed to be contained in maps, in possession of officers of the Corporation of Yew York, and in descriptions of other pieces of land, given in certain deeds thereof, executed by them, as well as by the dimensions of other neighboring pieces of land, leaving the dimensions called for by the Sheriff’s deed of Eden’s interest, which was the source of the plaintiffs’ title, such as to require the width of one-half of such street, to make up the quantity thereby conveyed. There was also some evidence offered, in order to show the inclosure of the premises by fences, and the occupation of the land in question "with other adjoining land, by tenants of the testator of the plaintiffs. On the other hand, this was met by evidence, tending to show the exclusion of the site of such street from the land conveyed by such Sheriff’s deed, by a wall, with or without fence upon it, as far back as the execution of such deed; and by admissions supposed to be made by the testator of the plaintiffs,, in conveyances executed by him, in the description of the-premises, conveyed. Calculations were made and: explanations given by experienced surveyors, in regard to the condition, dimensions, designation and ownership, of all the circumjacent land, and diagrams furnished. This case, seems to have been decided by the Court, on the first trial, and to have gone to the Jury on the last, solely upon the question of fact, as to the location of the land, as described in the before mentioned Sheriff’s deed of Eden’s interest, and the inclusion within it of the premises in controversy.

The evidence of admissions, fences, inclosures, and. the existence of a highway, seems to have been only admitted as auxiliary to establishing that. There was no question raised as to the title or possession of Medcef Eden to such land in controversy, or any attempt made to claim a subsequent adverse title, by actual inclosure. It was assumed by the Court, parties and counsel, either that he was owner or in possession, or that by some operation of law the Sheriff’s deed transferred some title or right of possession of his to the parties from whom the plaintiffs claimed title, unless there was a subsequent actual occupancy, under claim of title.,

On the trial of the other action, already referred to, substantially the same evidence was given by the same witnesses, showing the same title on both sides, and involving the same question of fact as was determined on both trials in this case, in favor of the plaintiffs. Amd there was, as was understood by the Justice presiding at such trial, the same lack of evidence as to any title or possession in Medcef Eden, or proof of subsequent inclosure of the premises in question, by others, under whom the plaintiffs claimed title. The ease was entirely withdrawn from- the-Jury, and apparently disposed of by a, dismissal of the complaint, on that ground; In the decision of the-motion the learned Judge stated that a party is limited to the land; actually inclosed by him, when he shows no right but possession ; although, if the plaintiffs had shown ownership, by Eden, of lands of larger extent, an entry by a grantée of them, upon any portion, claiming title to the whole by a deed of them, would have operated as a possession of the whole. He also stated that there was no evidence adduced on such trial, of any fence between the Eden interest, conveyed by the Sheriff, and the adjoining lands of the Oity Oorporation, at the time of such conveyance. That the only evidence of occupancy, by inclosure, was by a fence on the north side of Oheesman street, excluding, of course, the premises in question, from the possession or occupancy of those under whom the plaintiffs claim; and there was no evidence of any subsequent occupancy of inclosure by any one, under whom the plaintiffs claim, to the time of trial. That in the year 1822 there was only one fence between the property of the Oity Oorporation and of those under whom the plaintiffs claim; and from that time down to the trial, the Only occupation of the disputed ground was by the Oity Oorporation, and persons claiming under them.

Whether the views expressed by the learned Judge, on such trial, be or not, the controlling law of the case, they are equally applicable to the evidence given on the two trials of this case; and if the defendant omitted to insist on their application on such trials, and to except to a refusal to make it, or if, without such exception, there was anything in the charges in them, entitling him to a new trial, he cannot now avail himself of the statute, to make another experiment, in order to avoid the consequences of his neglect. The law is not made to assist the supine and sluggish. If the parties chose to concede, on both trials, for the purposes of such trials, and tried the issues on that theory, that if the Sheriff’s deed of the Eden interest conveyed the land in question in terms, it passed the title and possession, in point of law, they ought not to be allowed to have a new trial, merely in ordef to withdraw that concession, and avail themselves of the new light thrown upon their case by the subsequent trial in the other case. I do not understand that there is any conflict of opinion, so far as I can see, between the views of the different learned Judges who presided at the different trials. Those before whom this action was tried, left to the Jury the simple question of fact, whether the Eden Sheriff’s deed included half of Cheesman street. The learned Judge before whom the other cause was tried, held that if it did, it was immaterial until some possession by Eden, or those under whom the plaintiffs claim, by inclosure or otherwise, was established. The defendant will not, therefore, be prejudiced in this case, by an unexpected subsequent subversion of a supposed settled doctrine of law, applied to his ease, by means of a subsequent decision by a higher Court, even if that were a proper case for exercising the discretion under the statute, of giving him a new trial.

The only other point of difference between the trials, in this and the other case, was in the admission, in the former, of a copy of a map, called the Inkleberg Map, which it is claimed was admitted on insufficient proof of the existence or loss of the original, or else if admitted as the original, it was improperly admitted ,• that the original seems, by the printed case, to have been produced on the trial in the other case, and excluded, while the copy was admitted as coming from the possession of the City Corporation. The insufficiency of such proof was, or might have been, made the subject of an exception in this case, and of review upon an appeal, which has been neglected too long to enable the defendant to bring one. It certainly would not be a proper discretion for the Court to exercise, under the statute, to grant a second new trial, because the applicant had lost the opportunity of availing himself of an appeal, by reason of an erroneous decision of law. I do not see, besides, how the defendant would be benefited by the defect being cured, on a second trial, by the introduction of the original map. It would hardly be just, under such pretense, to enable the defendant to procure a new trial, to avail himself of the objection of want of proof of a good .source of title.

I cannot find, therefore, anything in the present application, appealing strongly to the sense of equity of the Court, to warrant the granting of a third trial, as a matter of discretion, such as the discovery of new evidence would. The two trials are granted, not as a favor to either party, but to enable the Court to do justice, since it is held that each party is not entitled to two new trials, under the statute. (Bellinger v. Mmtindale, 8 How. Pr., 113.) In any action in which a title to land is concerned, which depends so much upon descents, devises, conveyances, legal proceedings and possessions, such difficulties may arise in regard to the proof, as far back as twenty years and upwards, of marriages, births and deaths, the existence, loss and contents of documents, actual surveys, maps, and inclosures, that some liberality is to be indulged, in granting new trials upon the discovery of new evidence. But I cannot think the same favor should be extended to a party who has lost his case by overlooking a point of law, or conceding a fact, or omitting to seek a remedy by appeal from an erroneous decision, unless something to throw him off his guard is established. There is nothing of that kind in this case, to commend the defendant’s application to the favor of the Court.

Titles are settled by decisions and acquiescence in them, until the time for appeal has gone by. Parties deal on the faith of such settlement. In this very case, the defendant took from the City Corporation indemnity money for the failure of his title, and negotiated with the plaintiffs for an exchange of land. It would be unjust to unsettle them for any cause except that which would be productive of greater injustice by not doing so. Two trials, the decision of a Judge in one, and of a Jury in another, in favor of the plaintiff, and such long acquiescence, particularly so long after the discovery of the matters now set up as reasons for a new trial, ought to set the matter at rest, as against such reasons.

The motion must be denied, with ten dollars costs.


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    Wells Phillips et al., Plaintiffs, v. William F. Bartlett, Defendant.
    1. A complaint alleging that between specified days the plaintiffs sold and delivered to defendant, at his special instance and request, a large quantity of boots and shoes of a specified value, qqd that there is due and unpaid therefor a sqm designated which he promised to pay them; but though often requested by them, has wholly refused, is sufficient on demurrer.
    2. In an action by several plaintiffs to recover for goods sold and delivered, an allegation of partnership is not necessary, and the allegation of sale and delivery sufficiently implies that the goods belonged to the plaintiffs.
    Special Term,
    May, 1863.
    Before Robertson, J.
    This action was brought by Wells Phillips and Albert Smith, against the defendant, to recover for goods sold. The defendant demurred to the complaint, the substance of which is stated in the opinion.

      Mr. Harrington, for defendant.

      G. L. Walker, for plaintiffs,
   Robertson, J.

The complaint in this case alleges that between the first day of February and 27th of September, in the year 1862, “ the plaintiffs sold and delivered to the “ defendant, at his special instance and request, a large “ * * quantity of hoots and shoes,” of a certain value, and that there is due and unpaid therefor “ a certain sum, “ which the defendant promised to pay the plaintiffs, but “ though often requested ” by them, has wholly refused to pay it. The only cause of demurrer assigned is that the complaint does “ not state facts sufficient to constitute “ a cause of action.”

It appears to me enough facts are stated to constitute a cause of action; whether they are stated with sufficient definitiveness and certainty to identify the contracts, or inform the defendant of what he is to meet, is not a question for a demurrer. The allegation of partnership is not necessary, or even that the goods belonged to the plaintiffs, which is implied in the sale and delivery alleged. Even the promise to pay is unnecessarily stated.

The demurrer must be overruled, and judgment given for the plaintiff, on the usual terms.


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    Alexander Taylor, Plaintiff, v. Augustus C. Richards et al., Defendants.
    1. The objection that the allegations of an answér are hypothetical, is not available on demurrer.
    2. A defendant in his answer, in order to avoid the cause of action alleged, need not confess it; he may aver that if any such contract as alleged was made, it was made jointly with other persons.
    3. An answer setting up the non-joinder of third persons, averred to be jointly liable with the deféndants, sufficiently alleges that they are still living, if it alleges that they reside at a place named.
    Special Term,
    June, 1863.
    Before Monell, J.
    Demurrer to answer.
    This action was brought to recover for the use and occupation of apartments in the City Assembly Rooms, in this city. The complaint also alleged a hiring by the defendants.
    The defendant, Richards, in his answer alleged, that there was a defect of parties; that several persons, (naming them,) “all of whom reside in the City of Flew York,” ought to be joined as defendants. The answer then proceeded to allege that “if” the defendants used and occupied the. premises, or “if” they hired the same, or “if” they promised to pay the sum in that behalf mentioned in the complaint, it was jointly with said persons named.
    To this answer the plaintiffs demurred, alleging that it did not constitute a defense to the action.
   Monell, J.

The first objection to the answer is that it is hypothetical; that the defendant seeks to avail himself of a defect of parties only in the event of the plaintiff’s proving a hiring, or a promise by the defendant.

The first answer to this objection is, that it is not available upon demurrer. (Ketcham v. Zerega, 1 E. D. Smith, 553; Wies v. Fanning, 9 How. Pr., 543.)

The second answer is, that pleading a hypothesis, as it is pleaded in this case, is not objectionable. Pleas totally inconsistent with each other are not a novelty. The “general issue,” (which denied the making,) and payment or infancy, release, accord and satisfaction, statute of limitations, either of which admitted the making, and went only in avoidance, were always allowed—indeed, were necessary to enable the defendant to set up either of those two defenses. The Code, instead of abridging these characteristic pleas, has enlarged the right to plead as many defenses as the defendant may have. (Code, § 150, sub. 2.) Hence, in slander he may deny the uttering and justify. (Butler v. Wentworth, 9 How. Pr., 282.) It is, I believe, the constant and uniform practice to allow a defendant, with a general denial, to set up any new matter in avoidance of the plaintiff’s cause of action, and which, by admitting the cause of action, is inconsistent with the general denial.

But matter in avoidance must be specially set up by answer. (Wies v. Fanning, 9 How. Pr., 543; McKyring v. Bull, 16 N. Y. R., 297.)

A defendant in order to avoid need not confess. He has a right to put the plaintiff to Ms proof, and is not to be shut out of Ms defense because the proof is strong enough to charge Mm. He has the right to say,. I deny your alleged cause of action against me, but if you shall succeed in proving it, still I am not liable, because, &c. TMs view is in accordance with Ketcham v. Zerega and Wies v. Fanning, sivpra.

The remaining objection is to the substance of the new matter set up in the answer.

The answer does not, in terms, aver that the persons named as being justly liable with the defendants, are living persons; but the allegation that they “all reside in the City of Hew York,” it seems to me, is a sufficient averment that they are living persons.

The Code, in abolishing form, and requiring substance to be stated in a pleading, has left the pleader to use such language, expressive of his meaning, as he may deem proper. In this case “reside” is equivalent to and synonymous with “live” or “living,” the use of either of which words would be sufficient.

I must, therefore, hold the averment to be sufficient.

' Judgment for the defendants upon the demurrer, with costs.


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    Jacob H. V. Cockroft, Plaintiff, v. The Atlantic Mutual Insurance Company, Defendants.
    1. In an action on a policy of marine insurance, the defendants’ remedy, to compel a disclosure by the plaintiff of the number of packages, or the quantity and nature of the cargo lost or injured, and the items of expenses incurred, is by requiring a bill of particulars, rather than by motion to make the complaint more definite.
    2. Section 158 of the Code of Procedure authorizes the Court to order a bill of particulars in such case; and the fact that the usual preliminary proofs or adjustment of loss had been made before the action, does not impair the defendants' right to a bill of particulars.
    Special Term,
    March, 1862.
    Before Robertson, J.
    In this action the defendants, who were sued upon a policy of marine insurance, moved for a bill of particulars, or account of the items claimed.
   Robertson, J.

It is plain that the plaintiff and defendants are not upon an equal footing as to the items of the plaintiff’s claim, of which evidence is to be introduced. In other words, the defendants are not notified by the complaint what they are to meet on the trial. It is equally plain that the defendants ought to have a right to be informed thereof, either by compelling the plaintiff to make Ms complaint more certain, or by a bill of particulars. I tMnk the 158th section of the Code authorizes the Court to order the latter, and that the remedy is not by a change of the complaint.

Damages by perils of the sea, except as to the number of packages or quantity and nature of the cargo injured, cannot be further particularized; nor do I think the plaintiff entitled to call for the marks of any packages, as there is no evidence there were any. The items of expense for salvage and repairs of the vessel, and unlading and stowage of the merchandise on board, and the expenses of the plaintiff and his servants, in traveling or laboring for the protection of the cargo, are subjects of a bill of particulars, and should be given, so as to enable the defendants to produce evidence to the contrary, if they have it. The object of a bill of particulars is to confine the plaintiff to the items contained in it; it becomes part of the complaint; the preliminary proofs and adjustment of loss do not accomplish the same purpose, motion, therefore, must be granted, under the limitMtion before expressed. The costs of the motion are fixed ■ at seven dollars, to abide the event.


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    Emil C. Hanel et al., Plaintiffs, v. Frederick Baare et al., Defendants.
    1. The only disbursements which are to be allowed in adjusting the costs in a civil action under the Code of Procedure, are those specified in section 311 of the Code.
    2. The expenses of exemplified copies of foreign documents are not taxable, especially where there is no affidavit that the documents were actually and necessarily used, or obtained necessarily for use.
    Special Term,
    March, 1863.
    Before Robertson, J.
    The plaintiffs in this action discontinued it after it was at issue, and the defendants, on entering judgment for their costs, claimed among the disbursements an item stated thus:
    “ Expenses of commission,____$31 22”
    The affidavit to the disbursements stated that the defendants paid $27.62 for exemplifications of the proceedings in the Tribunal of Commerce, at Paris, in France, set forth in the defendants’ answer; that such exemplifications were procured by the advice of the defendants’ counsel, for the purpose of being used on the trial of this action; and that the defendants also paid $3.60, for postage on the commission sent to Paris to take testimony in this action.
    Upon adjusting the costs before the Clerk, the sum of $27.62, for the exemplification mentioned, was disallowed by the Clerk, and the defendants moved before the Court, at Special Term, for a readjustment of the costs in this respect.

      C. B. Smith, for the motion.

      George C. Barrett, opposed.
   Robertson, J.

The item objected to was inserted in the bill of costs, as “Expenses of commission, $31.22.” Only the ordinary affidavit was produced, of the sum having been paid or necessarily incurred. Three dollars and sixty cents of it was allowed for postage. The rest was for a copy of certain proceedings in French Tribunals, referred to in the defendants’ answer. Ko expenses had accrued on the commission.

This item was probably sufficiently set forth in detail, as required by the 311th section of the Code of. Procedure, and there was no surprise on the plaintiffs in calling it “ commission ” instead of “ records.” There does not appear to be any repeal of the provision of the Bevised Statutes, (2 B. S., [4th ed.,] 841, [653,] § 7,) which required an affidavit to be presented that copies of documents proposed to be taxed were “ actually and necessarily used, or were necessarily obtained for use," which was not produced in this case. The 311th section of the Code did not originally embrace in its specification of what might be included in necessary disbursements, either witnesses’ fees or the compensation of commissioners. These were added by a subsequent amendment. It is plain, therefore, that the only disbursements to be allowed are those specified. (Case v. Price, 17 How. Pr., 348.) Even surveyors’ fees, unless in partition or dower cases, are not allowed. (Haynes v. Mosher, 15 How. Pr., 216.) Copies of documents or records obtained from public officers in this State, may be charged as officers’ fees, but' there is no provision for copies of foreign documents, that I have been able to find. Under the original Code, only the fees specified by the 20th section of the act “ concerning the fees of certain officers,” (2 R. S., 634,) were allowed as disbursements allowed bylaw. (Dewitt v. Swift, 3 How. Pr., 282.)

The motion must be denied, with seven dollars costs.


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    Richard S. Cumming, Receiver, Plaintiff, v. Abel T. Egerton et al., Defendants.
    1. It must now be deemed settled that a Receiver appointed in supplementary proceedings, represents not only the debtor, but the creditor, at whose instance he was appointed.
    2. Such a Receiver ought not to employ the attorney of either the debtor or the creditor; but if he does so in an action against a third person, the latter cannot object.
    3. A want of funds by a Beceiver, to pay the costs of an action brought by him against a third person, in which he is unsuccessful, ought to be conclusive evidence of bad faith on his part, within the provision of the Code of Procedure, (§ 317,) which charges trustees with costs personally, when they have been guilty of bad faith.
    Special Term,
    March, 1863.
    Before Robertson, J.
    This was a motion made by the assignee of a judgment debtor of whose estate a Beceiver had been appointed in supplementary proceedings, to compel such Beceiver to employ a different attorney and counsel from that of the judgment creditor, in the present action commenced by such Beceiver to set aside an assignment by such debtor to such assignee, as fraudulent.
   Robertson, J.

This is an action brought by a Beceiver of the defendant, Egerton, appointed in another court on supplementary proceedings on a judgment against him, to set aside a fraudulent conveyance. It seems to be settled too long to be questioned, that a Beceiver in such case, acquires more than the interest of the judgment debtor; he takes the place of the judgment creditor; indeed becomes, in law, the assignee of both their interests, for the benefit of the latter. (Porter v. Williams, 5 Seld., 142; Gillet v. Moody, 3 Comst., 479; Talmage v. Pell, 3 Seld., 328; Curtis v. Leavitt, 15 N. Y. R., 12.) Formerly he was only assignee of the debtor. (Green v. Hicks, 1 Barb. Ch., 314; 8 Paige, 273; 1 Id., 637.) The origin of the change is not very clear, but at any rate the Beceiver must now be considered as representing the plaintiff, at whose instance he was appointed, particularly to set aside a fraudulent deed to a third party.

The general rule undoubtedly is that a Beceiver in an action cannot appoint, as his attorney, the attorney of either party, the reason of which is stated to be that he thereby assumes inconsistent duties. (Ryckman v. Parkins, 5 Paige’s Ch. R., 545; Wilson v. Poe, 1 Hogan, 322.) If the parties do not object, however, a stranger cannot. (Warren v. Sprague, 11 Paige, 200.) It is very evident that a judgment debtor is not a necessary party to an action to set aside a conveyance as fraudulent against third parties, as he has no interest. In this case, perhaps, it was more necessary to make him a party, as his wife is claimed to be a fraudulent grantee.

If costs are not to be decreed against a Beceiver, when unsuccessful, although he only represents the plaintiff in the judgment, it undoubtedly would lead to great abuses; as experimental suits on supplementary proceedings might be used merely to harass and vex third parties. The 317th section of the’Code of Procedure directs costs against trustees of an express trust to be chargeable only on the fund in their hands, unless they have been guilty of mismanagement or bad faith. It ought to be considered conclusive evidence of bad faith under that section, if they have no funds in their hands, to pay the costs of the successful party whom they have vexed by unnecessary actions; and the protection of such parties must be found in that. I regret that the rule, as established, does not compel Beceivers, in cases like the present, to employ a different attorney from that of him, at whose instance he was appointed.

As the question is new, the motion must be denied, without costs.