may be made on minutes to set aside verdict because it is "contrary Judgment and order affirmed. to law." Code of Civil Proc., § P. 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 PROCEED INGS. Y. SUPERIOR COURT. GENERAL Isaac S. Miller, rec'r., v. Eli Levy et al. Decided June 18, 1880. Where a receiver in proceedings supplement ary to execution is appointed, and the judgment debtor by direction of the writ executes a conveyance of all his right, title and interest in certain real estate to such receiver who commences an action for a partition of the premises, and is appointed receiver pendente lite of the rents and profits of the premises, the latter order will be reversed on appeal by the defendants interested in the partition suits. Proc. Under the Old Code the court could not entertain a motion on the minutes to set aside verdict on the N. ground that it was contrary to the instructions of the court. 51 N. Y., 244. And there was doubt as to the power under the Code, in a case where the jury had rendered a verdict against the clear and uncontradicted evidence in the case, and contrary to law, 39 N. Y., 313, the provision of New Code above adverted to was probably intended to meet those cases, but it is very questionable whether it was intended to authorize a motion to set aside the verdict on the minutes, on the ground of an error in the charge, to which no exception was taken, and which, if the attention of the trial judge had been directed to it by an exception, might have been corrected at the trial. But passing that question, the charge referred to was unobjectionable. (3d), The 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 mentioned. Subse Appeal by the defendants, executors, &c., of Abraham Levy, deceased, from an order appointing the plaintiff receiver of the rents and profits of certain real estate devised by the deceased, pending an action for a partition of the same. 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 premises in question, and was thereupon, by order of this court, appointed receiver pendente lite of the rents and profits of the premises. It is from this last order, made January 25, 1878, appointing the plaintiff, in the partition suit instituted by him as receiver, again a receiver of the rents of the entire premises sought to be partitioned, the defendants, executors of the will of Abraham Levy, appeal. Chas. M. Hall and A. A. Greenhoot, for applts. Isaac L. Miller, plff. and respt., in person. additional administration of the trust estate, there appears to be but very little ground for sustaining the order appealed from. As it is, the plaintiff has had over two years since this order was made to bring his suit to a hearing, and it is apparent that the order was only made to protect the interest he claimed while diligently prosecuting his suit, and not with the view of permanently divesting the executors and trustees of all rights and duties to the administration of the estate. 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: "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 said mortgage, the with costs. plaintiff was entitled to the imme Opinion 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;" and while the plaintiff was lawfully possessed, &c., the defendant wrongfully "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. Decided June 18, 1880. V Where a chattel mortgage is in the form of a bill of sale, upon condition that, on payment of a certain sum on demand, it should be void, on demurrer to complaint upon the mortgage, Held, That the fact of the ownership being alleged, it was not essential to allege that there was a default, and that the omission to plead it did not create a presumption that it had not occurred. the terms of the mortgage provided Held, That since the pleader seemed to have brought his action on the case it would have been better to have alleged the default Demurrer to complaint which stated that one Whelan executed and delivered, for consideration, to the plaintiff a mortgage upon certain chattels of Whelan. By the 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; Judgment affirmed. Opinion by Sedgwick, J.; Curtis, in 76 N. Y., 279. The defendants Ch. J., concurred. PROMISSORY NOTE. DE- N. Y. SUPERIOR COURT. TERM. GENERAL Joseph Nickerson et al. v. Emil Ruger et al. In Decided June 18, 1880. an action upon a promissory note by the endorsees against the makers, where there are several equitable defenses set up on the trial, the defendants are properly allowed to show their equities and have the whole case submitted to the jury. were allowed to show their equities and the whole case was submitted to the jury, with the instruction, in substance, that whether the note was given for accommodation, or taken by fraud, the plaintiffs, before they could recover, had to show affirmatively, as part of their case, that they took the note before maturity, and that when they took it they took it without the notice of defendant's equities, and either parted with a valuable consideration on the faith of it, or agreed to part with a valuable consideration 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 charge was all corAction 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 ground 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 representations from the defendants; and that Taylor, the payee, never endorsed the note to the plaintiffs for value; and that the plaintiffs are not the legal owners, or legal hold Judgment and order appealed from affirmed. Opinion by Freedman, J.; Curtis, Ch. J., concurred. ers, of said note; and that said de- PARTNERSHIP. FIRM NAMES. fendants improperly detain said CITY COURT OF BROOKLYN. GENERAL note from said Taylor. The evidence was submitted to the jury, who found for the plaintiffs for $1,375. A motion for a new trial was denied. A motion to reduce the verdict to $1,050 was granted. Defendants appealed. IV. W. Goodrich, for plffs. Held, That the trial proceeded strictly in accordance with the rule laid down by the Court of Appeals TERM. George D. Lunt et al., applts., v. E. H. Lunt, respt. Decided May 29, 1880. The use of a firm name not representing actual existing partners is illegal, except by the remaining partners of a former firm who shall file a certificate with the county clerk, showing who the remaining partners are, &c. A firm cannot enforce a contract made by them while using such illegal firm name. The Special Term overruled plaintiffs' demurrer. W. H. Taggart, for applts. 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 Bros." In February, 1875, the said B. P. Lunt died, and the plaintiffs continued the use of said firm name, but without filing any certificate in the county clerk's office showing up and the demurrer admits that who the existing partners were. the required certificate was not W. C. Beecher, for respt. Held, That since the answer sets 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. They subsequently brought this action, alleging that the contemplated contingencies had occurred. Defendant among other defenses plead, as a second defense, that the firm name of "Lunt Bros." was a fictitious name, in that there were no "Lunt Bros." in said firm, and that it was used in violation of the penal statute (passed April 29, 1833); that the firm was not a commercial copartnership located and transacting business in a foreign country; that the firm name of "Lunt Bros." was used without making and filing any certificate, as required by the statute of 1854, and that, therefore, the contract was illegal and void. negative the supposed claims of the plaintiffs under each of them. If the plaintiffs had been members of a prior firm, known as "Lunt Brothers," and in continuing the business had elected to continue the use of that firm name, or if the firm had business relations with foreign countries, or had carried on business in this state, under that name for five years or upwards, they would still be obliged to make and file the certificate required. The act of 1833 is highly penal, and is not to be extended by construction to transactions not within the spirit and terms of its prohibition; but fairly applied, it is salutary and favorable to legitimate business. It is obvious that the To this defense plaintiffs de- intended to qualify its severity only Legislature, in amending this act, 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 the acts amendatory to the act of 1833. By the act of 1863 firms of five years standing, or having dealings with foreign countries, were allowed to retain a former firm name, upon Opinion by Neilson, Ch. J.; McCue, J., concurring. |