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Statement of case.

at General Term, whether it would make such order, and if it had exercised that discretion and refused to make it, no error would exist. But if having the power so to do, it failed to use it on the ground that the power was not in it, there is error which

may

be reviewed and corrected. The claim of error here under notice is to be sustained, if at all, not upon anything shown in the order of the court at General Term, nor upon the judgment entered thereon, nor upon anything which appears in the record. The opinion delivered at General Term, if it can be used, shows plainly that if the court there had deemed that it had the power to reduce the damages, still leaving a recovery, it would have exercised it, but that it was of the opinion that it could effect that end only by granting a new trial for that reason, and that the excess of damages was not of itself quite suffiçient to warrant an order for a new trial.

But we are not authorized to review a judgment, and to reverse it for an alleged error which does not appear upon the record, and is not shown or to be arrived at, save by expressions appearing in the opinion of the court.

The judgment must be affirmed with costs to the respondent.

All concur except ALLEN, J., dissenting, and Rapallo, J. not voting.

Judgment affirmed.

The Eighth NATIONAL BANK OF THE Crry of New York,

Appellant, v. HENRY Frrch, Sheriff, etc., Respondent.

Where a sheriff receives for collection an execution against one of the

members of a copartnership, and by virtue thereof levies upon the interest of the judgment debtor in the goods of the firm, and where, within sixty days after receipt, and before a sale, he receives an execution against all the members of the firm for a copartnership debt, the latter is the prior lien, and if upon sale the stock proves insufficient to satisfy it, he is justified in returning the former execution nulla bona.

(Argued May 24, 1872; decided May 28, 1872.)

1

Statement of case.

APPEAL from judgment of the General Term of the Supreme Court in the third department, affirming a judgment entered in favor of defendant on the report of a referee.

The action was for a false return. The defendant was, at the time of the occurrences alleged in the complaint, sheriff of the county of Albany.

A judgment was rendered on the 27th February, 1867, in favor of the plaintiff, against John Murphy and Robert McDonald for $1,179.80. On the 28th of February, 1867, an execution upon this judgment was delivered to one of the defendant's deputies, who on the same day made a general levy thereunder on all the interest of the judgment debtors, Murphy & McDonald, in all the stock and fixtures of the firm of Maloney, Murphy & McDonald, of which they were members. At various dates during the month of March, 1868, the defendant received various attachments against the firm of “Maloney, Murphy & McDonald,” amounting in the aggregate to over $25,000. The defendant seized the said stock and fixtures of “Maloney, Murphy & McDonald” under said attachments, being the same property, the interest of Murphy & McDonald in which had been previously levied upon under the plaintiff's execution. The value of this was about $4,800. Neither Murphy nor McDonald had any property of any kind, as far as appeared, except their respective interests in the firm of “ Maloney, Murphy & McDonald.”

The property was subsequently sold by the defendant under the executions issued upon judgments against “ Maloney, Murphy & McDonald " in the actions in which the attachments were issued. The property brought $1,600. The defendant, on the 13th of April, 1867, returned the plaintiff's execution against Murphy & McDonald nulla bona, for which return the plaintiff sues, alleging it to be false.

It was shown by the plaintiff that Storrs, Murphy and McDonald were partners until November, 1865, when Storrs sold out his interest to Murphy and McDonald, who gave him their notes for part of the purchase-money, and one of the

Statement of case.

notes so given was the foundation of the plaintiff's judgment. Murphy & McDonald continued until March, 1866, when the new firm of “ Maloney, Murphy & McDonald” was formed. The new firm took all the property of Murphy & McDonald, and assumed their liabilities. Murphy & McDonald were then solvent.

The referee found that there was no property of the judgment debtors out of which defendant could collect the execution, and that the return was correct.

N. C. Moak for the appellant. Plaintiff's judgment being upon a firm liability, it was with other firm creditors equally entitled to be paid out of the firm assets. (Colt v. Wilder, 1 Edw. Ch., 484, 490-497; Dingledein v. Third Av. R. R., 37 N. Y., 575; In re Downing, 3 Bankrupt Register, 182; Code, $ 136, sub. 4, as amended 1866, Laws 1866, vol. 2, p. 1838; Stevens v. Bank of Central New York, 31 Barb., 293, 294; 2 Kent's Com., 388, marg. p. ; Lafarge v. Herter, 9 N. Y., 241; Johnson v. Fitzhugh, 3 Barb. Ch., 372, 373; Clark v. Rowling, 3 N. Y., 216–224; Dresser v. Brooks, 3 Barb., 430; Fox v. Woodruff, 9 id., 498; Lawrence v. Fox, 20 N. Y., 268; Burr v. Beers, 24 id., 178; Thorp v. Keokuk Coal Co., 47 Barb., 439; Van Alstyne v. Cook, 25 N. Y., 495; Artisans' Bank v. Treadwell, 34 Barb., 563, 565; Stevens v. Bank of Central New York, 31 id., 290, 293, 294; Cook v. Van Alstyne, 25 N. Y., 489; Becker v. Torrance, 31 id., 641; Gall v. Hinton, 8 Abb., 120; Smith v. Orser, 43 Barb., 187; 42 N. Y., 136-138; Benson v. Berry, 55 Barb., 620.) From the time of the agreement of the new firm to assume the old firm's debts, the new firm became the debtors and the old firm sureties merely. (Colgrove v. Tallman, 2 Lansing, 97, 101; Lafarge v. Herter, 9 N. Y., 241; 11 Barb., 159; Storms v. Thorn, 3 id., 314; Bangs v. Strong, 4 N. Y., 315.) If defendant undertook to settle for himself to whom he would pay the money, he was bound to do so correctly. (Butterworth v. Gould, 41 N. Y., 450.) Defendant was liable for not selling the interest of Murphy &

Opinion of the Court, per GROVER, J.

McDonald in the firm property. (Smith v. Orser, 43 Barb., 187; 42 N. Y., 132; Mason v. Lord, 40 id., 447; Brush v. Lee, 36 id., 52; S. C., 3 Abb. [N. S.], 204.)

Samuel Hand for the respondent. A levy upon partnership property, under an execution against one of the partners, passes to a purchaser upon a sale under such execution, only the interest of the partner in the property subject to the right of the copartners and firm creditors. (Hayes v. Reese, 34 Barb., 151 ; Story on Partr.ership, $ 97; Parsons on Partnership, 169; Williams v. Lawrence, 53 Barb., 320; Berry v. Kelly, 4 Robt., 106; Waddell v. Cook, 2 Hill., 47; Walsh V. Adams, 3 Denio, 125.) An execution against all the partners for a firm debt takes precedence of a prior execution against an individual member of the firm. (Crane v. French, 1 Wend., 311; Dunham v. Murdock, 2 id., 553; In matter of Smith, 16 Johns., 102; Scrugham v. Carter, 12 Wend., 131; Berry v. Kelly, 4 Robt., 106.) The members of the old firm became the creditors of the new firm, and neither they nor their creditors have any lien or preference on the property of the new firm over its other creditors. (Smith v. Howard, 20 How. R., 121; Abel v. Westervelt, 15 Abb. 230; Stoutenburgh v. Vandenburgh, 7 How. Pr. R., 229; Parsons on Partnership, pp. 167, 168; Story on Partnership, $ 97.)

GROVER, J. In addition to proving the return of nulla bona upon the execution, to entitle the plaintiff to recover it was necessary for him to prove that the execution debtors had property out of which the execution, or some part thereof, might have been collected. The execution was against two of three partners. There was no proof tending to show that either of them had any property subject to levy except their interest in the partnership stock of goods, amounting to about $6,000. The execution was received by the defendant for collection on the 27th of February, 1867, and a levy made upon the interest of the debtors in the stock on the 28th.

Opinion of the Court, per GROVER, J.

This was sufficient prima facie to establish a right of recovery. In answer to this case the defendant proved that, in March thereafter, several attachments against all the members of the firm were placed in his hands for service; that he levied the same upon the stock, and that thereafter judgments were recovered and executions issued against all the partners to the defendant for collection, to an amount much larger than the value of the goods of the firm, which the defendant sold and applied upon the last mentioned executions. The first inquiry is whether this was a defence to the case made by the plaintiff. No question is made as to the right of a sheriff to return an execution unsatisfied when all the property liable thereto is incumbered by prior liens to an amount greater than its value. All the property subject to the execution in the present case was the interest of the debtors in the property of the partnership. This interest was subject to levy and sale upon the execution. (Smith v. Orser, 42 N. Y., 132.) But the title acquired by the purchaser would not be any absolute interest in the property; the remaining partners having a right to have the whole applied, if necessary, to the payment of the debts of the firm. (Walsh v. Adams, 3 Denio, 125; Scrugham v. Carter, 12 Wend., 131, and cases cited; Story on Partnership, § 97.) The right of the plaintiff, under his execution, was subordinate to the right of the other partner, and also to those of the firm creditors, to have the property applied in payınent of the partnership debts, if necessary for that purpose. When the attachments and executions against all the members of the firm came to the hands of the sheriff, and the attachments had been levied, they constituted liens upon the property prior to that of the plaintiff against two of the members of the firm, although the latter was first received and levied. (Coover's Appeal, 29 Penn. St., 14.) The sheriff was therefore right in applying the proceeds of the sale upon the executions against the firm. (See authorities above cited.) But it was insisted by the counsel for the appellant that it was the duty of the sheriff to sell the interest of the execution

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