« ForrigeFortsett »
may be made on minutes to set Judgment and order affirmed. aside verdict because it is "contrary Opinion by Smith, J.; Talcott, to law.” Code of Civil Proc., SP.J., and Hardin, J., concurring. 999. That ground of motion was superadded by the present Code to those specified in sec. 264, Code of RECEIVER. PARTITION. SUP
PLEMENTARY PROCEEDProc. Under the Old Code the court could not entertain a motion on the
INGS. minutes to set aside verdict on the N. Y. SUPERIOR COURT. GENERAL ground that it was contrary to the
TERM. instructions of the court. 51 N. Y., 244. And there was doubt as to the
Isaac S. Miller, rec'r:, v. Eli Levy
et al. power under the Code, in a case where the jury bad rendered a ver- Decided June 18, 1880. dict against the clear and uncontra- Where a receiver in proceedings supplementdicted evidence in the case, and con
ary to execution is appointed, and the judgtrary to law, 39 N. Y., 313, the pro- ment debtor by direction of the writ exvision of New Code above adverted ecutes a conveyance of all his right, tiile and
interest in certain real estate to such receiver to was probably intended to meet
who commences an action for a partition of those cases, but it is very question
the premises, and is appointed receiver able whether it was intended to pendente lite of the rents and profits of the authorize a motion to set aside the premises, the latter order will be reversed verdict on the minutes, on the
on appeal by the defendants interested in the
partition suits. ground of an error in the charge, to which no exception was taken, and Appeal by the defendants, execuwhich, if the attention of the trial tors, &c., of Abraham Levy, dejudge had been directed to it by an ceased, from an order appointing exception, might have been cor- the plaintiff receiver of the rents rected at the trial. But passing and profits of certain real estate dethat question, the charge referred to vised by the deceased, pending an was unobjectionable. (3d), The action for a partition of the same. meaning of the words excepted to is The plaintiff was appointed remade plain by the context. The ceiver of the property of the defendsubstance of it is, that the con-ant, Leopold Levy, in proceedings ductor, knowing that plaintiff had supplementary to an execution, June a ticket, was bound to assume that 30, 1877. The judgment debtor,
, he had mislaid it, and that he in- Leopold Levy, by the direction of tended to produce it when found, the Supreme Court, executed Autill contrary appeared, and was gust 14, 1877, a conveyance to the bound also to give him a reasonable plaintiff of all his right, title and time for the purpose. We think interest in certain real estate which the charge could not have been un- was by the will of his father, Abraderstood otherwise by jury, and ham Levy, deceased, devised to his thus understood it was unexcep- executors, in trust, for certain purtionable.
poses therein mer tioned.
quently, in August, 1877, the plain- appointment of a receiver and the tiff, as receiver, commenced the incurring of the expenses of such present action for a partition of the additional administration of the premises in question, and was there. trust estate, there appears to be but upon, by order of this court, ap- very little ground for sustaining the pointed receiver pendente lite of the order appealed from. As it is, the rents and profits of the premises. plaintiff has had over two years
It is from this last order, made since this order was made to bring January 25, 1878, appointing the his suit to a hearing, and it is applaiutiff, in the partition suit insti- parent that the order was only tuted by him as receiver, again a made to protect the interest he receiver of the rents of the entire claimed while diligently prosecutpremises sought to be partitioned, ing his suit, and not with the view the defendants, executors of the will of permanently divesting the execuof Abraham Levy, appeal.
tors and trustees of all rights and Chas. M. Hall and A. A. Greenhoot, duties to the administration of the for applts.
estate. Isaac L. Millei, plff. and respt., It is unnecessary, in disposing of
the appeal from this order, to pass Held, That the papers show that upon the question, whether the the executors are responsible per- plaintiff, being a receiver in supsons, that they are indebted to no plementary proceedings, to whom a one in any sum whatever, that they conveyance has been made by the are able to answer any judgment judgment debtor, can, as such, that may be awarded in this action, maintain an action for a partition. and that they duly accounted be- He holds the property as an officer fore the surrogate June 8, 1876. of the court, to discharge some deThe affidavit of the plaintiff's attor- signated duty in respect to it, subney, made October 1, 1877, that|ject its order and approval. That it he believes the executors will ap- should be his right or duty, as such, propriate to their own use the rents to institute an action in partition, of the premises unless a receiver is does not seem to have been conappointed, and the grounds upon templated by the Legislature or apwhich he founds his belief, fail to proved by the courts any more than show such necessity or pressing in the case of a sheriff or a referee danger as calls for additional cus-appointed to sell. In Dubois v. todianship. The premises consist Cassidy, 75 N. Y., 302, the court of one small lot, with a building say:
building say: "We are inclined to the opinthereon, in Avenue B; the papers ion that a receiver thus appointed disclose the payment, under the does not obtain such a title to real order of the surrogate, of a consider-estate as will enable him to mainable sum by the trustees for legal ex- tain an action for partition,” but penses; the present suit may add to they do not consider themselves that amount, and in view of the ab- then called upon to decide that sence of any actual necessity for the question. In that case no convey
auce was executed by the judgment with the further covenant that, undebtor as in this to the receiver. The til default be made in the payment criticism of the court, however, upon of the money, the mortgagor was to the nature of the receiver's title to remain and continue in the quiet real estate of a judgment debtor, and peaceable possession of the as a basis for a partition suit by chattels. The complaint further the receiver in proceedings supple- averred, that payment of the money mentary to execution, is adverse to was demanded by the plaintiff of the sustaining of the present suit. the mortgagor; "and thereupon, Order appealed from reversed pursuant to
from reversed pursuant to said mortgage, the with costs.
plaintiff was entitled to the immeOpinion by Curtis, Ch. J.; Freed- diate possession and control of the man and Sedgwick, JJ., concurred. property so mortgaged, and became
the owner thereof, and thereupon
took the same into his possession ;" CHATTEL MORTGAGE. DE- and while the plaintiff was lawfully
FAULT. PLEADING. possessed, &c., the defendant wrongN. Y. SUPERIOR Court. GENERAL fully " took and converted the same
to his own use.
The defendants sustained their George Malcolm v. Hugh O'Reilly demurrer by the proposition that et al.
the terms of the mortgage provided Decided June 18, 1880. V that the mortgagor should remain Where a chattel mortgage is in the form of a in possession until default of
paybill of sale, upon condition that, on payment ment after demand; and although of a certain sum on demand, it should be the complaint stated a demand, it void, on demurrer to complaint upon the did not state that there had been mortgage, Held, That the fact of the ownership being alleged, it was not essential to any omission or refusal to pay. allege that there was a default, and that the Judgment entered for plaintiff. omission to plead it did not create a pre
J. F. Bullwinkle, for plff. sumption that it had not occurred. Demurrer to complaint which
William P. Mulry, for deft. stated that one Whelan executed Held, That since the pleader and delivered, for consideration, to seemed to have brought his action the plaintiff a mortgage upon cer- on the case it would have been tain chattels of Whelan. By the better to have alleged the default mortgage annexed to the complaint specifically; but that the complaint, it appeared to be in the usual form without it, should be sustained. of a bill of sale, upon condition The fact of the ownership was allegthat, on payment of a certain sum ed, and if it were an essential part on demand, it should be void. The of the title to allege that there was mortgagor covenanted that, in case a default, the omission to plead it of default in payment of the money, did not create a presumption that it the plaintiff might take possession had not occurred. of the chattels and sell the same;
Opinion by Sedgwick, J.; Curtis, in 76 N. Y., 279. The defendants Ch. J., concurred.
were allowed to show their equities and the whole case was submitted
to the jury, with the instruction, in PROMISSORY NOTE. DE- substance, that whether the note FENSE. PRACTICE.
was given for accommodation, or N. Y. SUPERIOR COURT. GENERAL taken by fraud, the plaintiffs, beTERM.
fore they could recover, had to Joseph Nickerson et al. v. Emil show affirmatively, as part of their Ruger et al.
case, that they took the pote before
maturity, and that when they took Decided June 18, 1880.
it they took it without the notice of In an action upon a promissory note by defendant's equities, and either the endorsees against the makers
, where parted with a valuable considerathere are several equitable defenses set up on tion on the faith of it, or agreed to the trial, the defendants are properly allowed to show their equities and have the whole part with a valuable consideration case submitted to the jury.
on the faith of it, and subsequently, A motion to reduce a verdict may be granted before maturity and notice, did so. upon the evidence when it appears excessive. That the judge's chargú was all cor
Action for a balance due upon a rect, except, perhaps, those parts promissory note by an endorsee which relate to the amount of the against the makers. The answer verdict. That all gronnd of comalleges that the note was an accom- plaint in that respect was obviated modation note, and was without by the subsequent reduction of the consideration; and that Taylor, the verdict. payee, obtained it by fraudulent re- Judgment and ordar appealed presentations from the defendants; from affirmed. and that Taylor, the payee, never Opinion by Freedman, J.; Curtis, endorsed the note to the plaintiffs Ch. J., concurred. for value; and that the plaintiffs are not the legal owners, or legal holders, of said note; and that said de- PARTNERSHIP. FIRM NAMES. fendants improperly detain said CITY COURT OF BROOKLYN. GENERAL note from said Taylor. The evi
TERM. dence was submitted to the jury,
George D. Lunt et al., applts., v. who found for the plaintiffs for
E. H. Lunt, respt. $1,375. A motion for a new trial was denied. A motion to reduce Decided May 29, 1880. the verdict to $1,050 was granted.
The use of a firm name not representing actual Defendants appealed.
existing partners is illegal, except by the reW. W. Goodrich, for plffs.
maining partners of a former firm who shall Geo. W. Colleril, for defts.
file a certificate with the county clerk, Held, That the trial proceeded
showing who the remaining partners are, strictly in accordance with the rule a firm cannot enforce a contract made by laid down by the Court of Appeals them while using such illegal firm name.
Prior to 1875 the plaintiffs were filing the certificate required by the in copartnership with one B. P. act of 1854.
. Lunt, under the firm name of “ Lunt The Special Term overruled plainBros." In February, 1875, the said tiffs' demurrer. B. P. Lunt died, and the plaintiffs W. H. Taggart, for applts. continued the use of said firm name, W. C. Beecher, for respt. but without filing any certificate in Held, That since the answer sets the county clerk's office showing up and the demurrer admits that who the existing partners were. the required certificate was not
In 1878 plaintiffs paid defendant signed, acknowledged, filed or puba certain sum of money, and took lished, it was not necessary for the from her a receipt and an agreement pleader to take up the other clauses that she would repay it upon cer- of the acts of 1854 and 1863 and tain contingencies.
negative the supposed claims of the They subsequently brought this plaintiffs under each of them. If action, alleging that the conten- the plaintiffs had been members of plated contingencies had occurred.
a prior firm, known as Defendant among other defenses
Brothers,” and in continuing the plead, as a second defense, that the business had elected to continue the firm name of “Lunt Bros.” was a
use of that firm name, or if the firm
had business relations with foreign fictitious name, in that there were no “Lunt Bros.” in said firm, and countries, or had carried on business “
in this state, under that name for that it was used in violation of the penal statute (passed April 29, still be obliged to make and file the
five years or upwards, they would 1833); that the firm was not a com
certificate required. mercial copartnership located and transacting business in a foreign and is not to be extended by con
The act of 1833 is highly penal, country; that the firm name of
struction to transactions not within “Lunt Bros.” was used without
the spirit and terms of its promaking and filing any certificate, as
hibition; but fairly applied, it is required by the statute of 1854, and that, therefore, the contract was
salutary and favorable to legitimate
business. It is obvious that the illegal and void.
Legislature, in amending this act, To this defense plaintiffs de- intended to qualify its severity only murred, and urged that the answer in favor of those who should conshould show affirmatively that form to the conditions imposed. plaintiff had not availed themselves
Judgment affirmed. of any exception contained in any of
Opinion by Neilson, Ch. J.: Mcthe acts amendatory to the act of Cue, J., concurring. 1833. By the act of 1863 firms of five
ATTORNEYS. USAGE. years standing, or having dealings with foreign countries, were allowed
U. S. SUPREME COURT. to retain a former firm name, upon The National Savings Bank of