Imágenes de páginas
PDF
EPUB

THE

New York Supplement.

VOLUME IV.

HOOPS et al. v. SCHMIDT.

(City Court of New York, Trial Term. February 14, 1889.)

PRINCIPAL AND SURETY-LIABILITY-DELIVERY OF CONTRACT.

Plaintiffs, lessees, transferred the lease to third persons, who agreed to pay the rent, and defendant, as surety, signed an agreement under seal covenanting to pay the lessor the rent. After signing this he refused to deliver it, unless the lessor's written consent to the transfer was obtained, as he had originally stipulated for. This the lessor refused to give, but he subsequently accepted rent from the assignees. Defendant never delivered the agreement. Held, that plaintiffs could not recover from defendant for subsequently accruing rent, which plaintiffs had been compelled to pay on default of the assignees. No liability was incurred by merely signing the agreement, without delivery or performance of the condition. Plaintiffs, John Hoops and others, leased of George W. Libby certain premises in Newark, N. J., for a term of five years, and afterwards transferred the lease to Adolph Koch, and George Beauermann. Defendant, Diederick Schmidt, agreed to become surety for the payment of the rent by Koch and Beauermann to the landlord, on condition that the latter's written consent to the transfer be obtained, (the lease containing a provision against such transfer without consent, under penalty of forfeiture.) Libby refused to give his consent, whereupon defendant, who in the mean time had signed the agreement of suretyship, refused to deliver it, and it is still in his possession. Libby subsequently accepted payments of rent from Koch and Beauermann, but they failed to make certain payments, and plaintiffs were compelled to pay the same. They now bring this action against Schmidt, as surety.

Robert Godson, for plaintiffs. Busteed & Blankman, for defendant.

MCADAM, C. J. The parties evidently contemplated that by the transfer of the lease, with the written consent of the landlord, the tenants would be relieved from further liability, and that Kock and Beauerman, as assignees, would be substituted thereto; for the agreement signed by the defendant as surety was made to George W. Libby, the landlord, and is in the nature of a covenant "under seal" to pay "him" such sums of money as may be required to satisfy the conditions of the lease. It was not a covenant to pay money to the plaintiffs on the happening of any default, for their names do not appear in the instrument, which, being under seal, and made to Libby, is not enforceable by the plaintiffs. Nevins v. Gardner, 1 City Ct. R. 407. The fact that the instrument was not delivered to the plaintiffs, that they never claimed possession of it, that it was taken to Libby, the landlord, and offered to him, V.4N.y.s.no.1-1

if he would sign the consent to the transfer, indicates that it was not intended that the plaintiffs should, in any event, be allowed to sue upon it. Libby refused to accept the defendant as surety, declined to sign the consent, and expressed a determination to look to the tenants for the rent till the end of the lease; whereupon the defendant declined to deliver his agreement of suretyship, and it was produced by him at the trial as an instrument still in his possession.

It is unnecessary to decide whether the receipt of rent by the landlord subsequent to the assignment, with knowledge of the transfer, dispensed with the legal necessity of the landlord's written consent, or what effect the consent would have had, if it had been obtained; for a surety has the right to impose any lawful condition he pleases upon the delivery of his obligation, and it remains inoperative until it is performed. People v. Bostwick, 43 Barb. 9, affirmed 32 N. Y. 445. A contract of suretyship may be complete in itself, and yet, as long as it remains in the hands of the parties executing it, be of no legal effect. Baylies, Sur. 97. It seems clear, therefore, that as there was no delivery to give legal inception to the contract, and no performance of the condition on which it was to be delivered, that no liability was created by the mere execution of the writing. For the several reasons stated, there must be judgment for the defendant.

[ocr errors]

LENNON v. Brandt.

(City Court of New York, Special Term. May, 1888.) ARREST IN CIVIL ACTIONS-SUFFICIENCY OF COMPLAINT FRAUD.

Under Code Civil Proc. N. Y. § 549, as amended by Laws 1886, c. 672, permitting an order of arrest in an action on contract where the complaint alleges that defendant has removed his property with intent to defraud creditors, and section 558, as amended by the same act, requiring the order to be vacated when the complaint fails to set out a sufficient cause of action, as required by section 549, but permitting the service of an amended complaint before granting an order applied for after service of the complaint, an order of arrest, granted after service of summons and complaint on an affidavit setting out a fraudulent disposition of property, will be vacated where there is no allegation thereof in the complaint, and no amended complaint is served before the order is granted.

Motion to vacate order of arrest.

Action by Thomas J. Lennon against John Brandt, commenced by service of summons and complaint April 25, 1888, for goods sold and delivered. On April 27, 1888, plaintiff obtained an order of arrest on an affidavit that defendant had disposed of his property with intent to defraud creditors. Defendant moved to vacate the order because the complaint failed to set forth a sufficient cause of action, as required by Code Civil Proc. § 549, and no amended complaint has been served or made as required by section 558.

Sections 549, 550, 558, Code Civil Proc. N. Y., as amended by Laws 1886, c. 672, are as follows: Sec. 549. "A defendant may be arrested in an action, as prescribed in this title, where the action is brought for either of the following causes: (1) To recover a fine or penalty. (2) To recover damages for a personal injury; an injury to property, including the wrongful taking, detention, or conversion of personal property; breach of a promise to marry; misconduct or neglect in office, or in a professional employment; fraud or deceit; or to recover a chattel where it is alleged in the complaint that the chattel or a part thereof has been concealed, removed, or disposed of so that it cannot be found or taken by the sheriff, and with intent that it should not be so found or taken, or to deprive the plaintiff of the benefit thereof; or to recover for money received; or to recover property or damages for the conversion or misapplication of property, where it is alleged in the complaint that the money was received, or the property was embezzled or fraudulently misapplied, by a public officer, or by an attorney, solicitor, or counselor, or by an officer or agent of a corporation or banking association, in the course of his employment, or by a

factor, agent, broker, or other person in a fiduciary capacity. Where such allegation is made, the plaintiff cannot recover unless he proves the same on the trial of the action, and a judgment for the defendant is not a bar to a new action to recover the money or chattel. (3) To recover moneys, funds, or property held or owned by the state, or held or owned officially or otherwise for or in behalf of a public or a governmental interest by a municipal or other public corporation, board, officer, custodian, agency, or agent of the state, or of a city, county, town, village, or other division, subdivision, department, or portion of the state which the defendant has, without right, obtained, received, converted, or disposed of; or to recover damages for so obtaining, receiving, paying, converting, or disposing of the same. (4) In an action upon contract, express or implied, other than a promise to marry, where it is alleged in the complaint that the defendant was guilty of a fraud in contracting or incurring the liability, or that he has, since the making of the contract, or in contemplation of making of the same, removed or disposed of his property with intent to defraud his creditors, or is about to remove or dispose of the same with like intent; but where such allegation is made the plaintiff cannot recover unless he proves the fraud on the trial of the action, and a judgment for the defendant is not a bar to a new action to recover upon the contract only." Sec. 550. "A defendant may be also arrested in an action wherein the judgment demanded requires the performance of an act, neglect or refusal to perform which would be punishable by the court as a contempt, where the defendant is not a resident of the state, or, being a resident, is about to depart therefrom, by reason of which non-residence or departure there is danger that a judgment or an order requiring the performance of the act will be rendered ineffectual." Sec. 558. * * * "At any time after the filing or service of the complaint the order of arrest must be vacated on motion, if the complaint fails to set forth a sufficient cause of action, as required by section 549 of this act; but where the order is applied for after the filing or service of the complaint, the court, before granting the same, may, without notice, direct the service of an amended complaint, so as to conform to the allegations required in subdivisions 2 and 4, § 549, of this act."

John R. Tresidder, for motion. Hiram Ketchum, opposed.

MCADAM, C. J. Since the amendment to sections 549 and 550 of the Code, made in 1886, (chapter 672,) the plaintiff, if he obtains an order to arrest the defendant on the ground of fraudulent disposition of property, must allege the facts in his complaint, or the arrest must be vacated. Section 558. Where the arrest is applied for after the service of the complaint, the court, "before" granting the order, may, without notice, direct the service of an amended complaint, so as to make the allegations conform to the Code requirement. Section 558, supra. The object of the amendment of 1886 was to change the rule previously existing, and to require the plaintiff to put into his complaint the allegations as to fraudulent dispositions of property that have, in this instance, been left out. The cases construing the provisions referred to prior to their amendment are inapplicable. The motion to vacate the order of arrest must therefore be granted, but without costs.

KELLY v. PITCHER.

(City Court of Brooklyn, General Term. July 22, 1888.) GUARDIAN AND WARD-SALE OF REALTY-BOND OF SPECIAL GUARDIAN.

Code Civil Proc. N. Y. § 2352, relating to proceedings to sell infants' realty, provides that the court must appoint a suitable person as special guardian, who must "thereupon" file with the clerk a bond, approved by the court. Section 2354 provides that upon presentation of the petition, "and the filing of the bond," the court must make an order of reference, to inquire into the merits of the application.

Held, that the failure of the special guardian to file his bond, previously duly executed and approved, until after the making of the order of reference, does not prejudice the infant's rights, and is a mere irregularity, in no wise affecting the validity of the proceedings.

Case submitted on agreed statement.

Action by Mary F. Kelly against Frederick G. Pitcher. The question in dispute depends upon the following provisions of the Code of Civil Procedure, in relation to proceedings for the sale of infants' realty: "Sec. 2352. Upon an application to sell, mortgage, or lease real property, or an interest in real property, of an infant, the court must appoint a suitable person to be the special guardian of the infant, with respect to the proceedings; who must thereupon file with the clerk a bond, as prescribed in the last section." "Sec. 2354. Upon the presentation of the petition, and the filing of the bond, the court must make an order appointing a suitable person referee, to inquire into the merits of the application," etc.

Argued before OSBORN, VAN WYCK, and CLEMENT, JJ.

R. H. Cole, for plaintiff. Jas. P. Judge, for defendant.

OSBORN, J. This is a submission of a controversy upon facts admitted, under section 1279 et seq. of the Code of Civil Procedure. The controversy arises on a sale by plaintiff to defendant of certain premises on Carroll street, in this city, and as to her ability to convey a good marketable title thereto; and the alleged defects in her title are claimed to arise out of the invalidity of certain proceedings had in this court for the sale of infants' real estate, under which plaintiff derives her title. The premises in question were owned by five infants, named Murray, as tenants in common. On August 10, 1886, on a petition in behalf of said infants, through their aunt, an order was made appointing John Travers special guardian of said infants, on his executing, acknowledging, and filing with the clerk of this court a bond, with sureties named in said order, conditioned as prescribed by the Code. On August 16, 1886, said Travers, with the sureties named in said order, executed and acknowledged a bond in accordance with the terms of said order, and said bond was presented to, and duly approved by, a judge of this court on August 20, 1886; and on that day an order was made, reciting the order of August 10, 1886, made on said petition, and further reciting as follows: "Now, on reading and filing the aforesaid petition, and due proof by an inspection of the bond, that said special guardian has executed and filed a bond as required by said order," and directing a reference to take proof of the allegations of said petition, etc. All of the foregoing papers were filed together in the office of the clerk of this court on, and not until, December 14, 1886, and while the proceedings on said reference were pending, and still undetermined, before the referee. Thereafter such proceedings were had that, with the approval of the court, said premises were conveyed by said infants, through their said special guardian, to the plaintiff therein.

Defendant now objects to taking title to the premises in question from the plaintiff on the ground that the above proceedings were fatally defective, in "that the petition and bond of the special guardian was not filed in the office of the clerk of this court before the application for, and before the order was made appointing, a reference in such proceedings, as provided by law, and that such failure to file the petition and bond before any further proceedings were had is fatal, and makes void the whole proceedings subsequent to the petition; and that the court had no power or jurisdiction to make the order of reference therein until the guardian had fully qualified, which is not so, until he has filed the bond as directed by the order appointing him." Proceedings for the sale of infants' real estate have been surrounded by the legislature with all the safeguards that a zealous regard for the interests of infants could suggest, and the courts have always been careful to protect their interests. It

is undoubtedly true, as contended for by the learned counsel for the defendant, that the proceedings, as prescribed by the Code of Civil Procedure, must be closely followed in all essential particulars, in order to effect a valid sale of an infant's realty. This does not mean, however, a mere blind adherence to the letter of the statute, disregarding its spirit; but the statute is to be closely observed in every respect, where a failure to do so would in any manner jeopardize the rights of the infant, or deprive him of the semblance of a benefit. Here it appears that, although the bond of the special guardian was duly executed, acknowledged, and approved by the court, and filed as recited in the order of August 20, 1886, it was not actually deposited with the clerk till December 14, 1886. We fail to see that the neglect to file the bond with the clerk sooner in any manner jeopardized the rights of the infants, or deprived them of any rights to which they were entitled. The bond was enforceable, although not filed; and if it could be shown that, while the reference was proceeding, the special guardian failed in the faithful discharge of his trust, his sureties would undoubtedly be liable. There is no pretense that this is the case. Before the referee reported, the bond was deposited with the clerk, and the statute in this respect was literally complied with, and the interest of the infants did not suffer by a failure to file it sooner. The failure to file the bond with the clerk prior to the entry of the order of reference was, at most, a mere irregularity, unsubstantial in its character, not affecting the jurisdiction of the court or the validity of the sale ultimately had in the proceeding. We are therefore of opinion that the special guardian for said infants was appointed and legally qualified to act when the order of reference was made; that the court had jurisdiction to make such order; that the failure to file the bond with the clerk before any proceedings were had before the referee was not such an error as invalidated the whole of the proceedings subsequent to the filing of the petition; and that, so far as the objections urged on this appeal go, the plaintiff herein can convey a good marketable title in fee, and the defendant should be compelled to take title, notwithstanding the objections. Judgment for the plaintiff that defendant take title to the premises in pursuance of contract. No costs, as per stipulation. All coneur.

COLWELL v. GARFIELD NAT. BANK.

(Common Pleas of New York City and County, Special Term. January 31, 1889.) 1. RECEIVERS-APPOINTMENT-FINAL JUDGMENT.

S. sued the executors of a deceased partner to subject decedent's estate to certain firm debts. Pending this action, plaintiff was appointed receiver of decedent's property, by an order directing the executors and all other persons to deliver any such property to the receiver, and authorizing him to institute actions for the protection of the estate. Held that, as it appeared that the receiver was appointed to protect decedent's estate, the court had power, after the dismissal of the complaint of S., though before the for mal entry of the judgment of dismissal, to make an order continuing the receivership pending an appeal, under Code Civil Proc. N. Y. § 713, providing that a receiver may be appointed after final judgment to preserve property involved in the action pending an appeal.

2. SAME-ACTION BY RECeiver-RecoVERY OF ESTATE.

In such case, defendant, who had appropriated a portion of the estate of the deceased partner on account of firm debts claimed to be due it, was not prejudiced by the fact that an action for the property so appropriated is brought by the receiver, and not by the executors.

3. SAME-PLEADING ASSIGNMENT TO RECEIVER.

A special averment of an assignment of the claim sued on to the receiver by the executors is not necessary.

Action by Frank W. Colwell, as receiver, against the Garfield National Bank. Defendant demurred to the complaint, on the ground that plaintiff did not have legal capacity to sue, and because it did not state facts sufficient to constitute a cause of action.

W. B. Ellison, for plaintiff. Lawrence & Waehner, for defendant.

« AnteriorContinuar »