169 N.Y. 293 | NY | 1901
The plaintiff, a judgment creditor of the firm of Homer Company, after the return of an execution unsatisfied, brought this action against the members of the firm and the defendant, Alfred A. Howlett, to have an assignment made by said firm to said Howlett of three contracts for the repaving of streets in the city of Syracuse declared fraudulent and void as against its judgment. It further asked that the defendant Howlett be restrained from the further performance of the contracts and be directed to account for all moneys received thereunder. Howlett answered denying all fraud. The assignment provided that the assignee, after reimbursing himself for all outlays made in the performance of the work, should, out of the net proceeds thereof, pay three debts from the assignors to certain corporations in which the assignee was interested, and then pay the surplus, if any, over to the assignors or into any court of competent jurisdiction. Howlett performed the work, but at the time this action was begun had received nothing from the city of Syracuse in payment therefor. Subsequently, and after giving a bond in the sum of $25,000 to keep the streets in repair during the period of ten years as required by the contract, he was paid in full. The issue of fraud was tried before the referee, who found that while the intent of the assignors was to hinder and delay their creditors, the assignee, Howlett, acted in good faith, in ignorance of such intent on the part of his assignors and for the sole purpose of securing the payment of the claims specified in the assignment. The referee, however, *296 further found that there remained in the hands of the defendant, Howlett, out of the moneys received by him on the contract, a surplus over and above the amount necessary for the payment of his disbursements and the secured claims in excess of the sum due to the plaintiff. He directed judgment that the defendant pay the plaintiff's judgment with the costs of the action and that he credit himself with the amount of such payments as against his assignors, Homer Company. From that judgment the defendant Howlett appealed to the Appellate Division, where the decree below was affirmed by a divided court.
The plaintiff as a judgment creditor of Homer could doubtless have maintained an action to reach any surplus proceeds of the contract in the hands of Howlett, as such surplus would be an equitable asset of the firm. If such an action had been brought, the referee's decision would have been justified. But the present action was not of that character. Its object was to declare the assignment fraudulent and void, while the judgment recovered has proceeded on an affirmance of the assignment. A party must recover secundum allegata et probata, not only according to his proofs, but according to his allegations. (Stevens v. Mayor,etc., of N.Y.,
The judgment appealed from should be reversed and a new trial granted, costs to abide the event.
PARKER, Ch. J., GRAY and HAIGHT, JJ., concur; O'BRIEN, LANDON and WERNER, JJ., dissent.
Judgment reversed, etc. *298