87 N.Y.S. 554 | N.Y. App. Div. | 1904
This appeal is from a judgment dismissing a counterclaim after trial before a referee. There is no dispute as to the facts, which, so far as material, are substantially as follows: In October, 1893, the firm of Coffin & Stanton, brokers, doing business in the city of New York, purchased for $145,275 from the city of Ironwood, a municipal corporation organized under the laws of the State of Michigan, its bonds of the par value of $150,000. Twenty-five thousand dollars of the purchase price was paid to the city at the time the bonds were delivered, and the balance agreed to be thereafter paid in installments at different times between the delivery and the 15th of May, 1894. . Coffin & Stanton having defaulted in the payment of all of the installments, on the 19th of September, 1894, this action was brought against them to rescind the sale and recover possession of the bonds. The plaintiff alleged a tender to Coffin & Stanton, prior to the commencement of the action, of the sum of $30,000 ; a demand for the return of the bonds, and the refusal of Coffin & Stanton to comply therewith. On the 3d of October, 1894, Coffin & Stanton interposed an answer, in which they denied that at the time the action was commenced any of the bonds were in their possession. On the day following, in an action brought by Stanton for the dissolution of the firm of Coffin «fe Stanton, in the United States Circuit Court for the southern district of New York, one Erb was appointed receiver of all the assets of that firm and he continued to act as such until the 12th of July, 1896, when he resigned, and the appellant Wickes was duly appointed in his place. In February, 1897, Wickes, as receiver, by leave of the court, intervened in this action and served an answer in which he sought, by way of counterclaim, to recover from the city the $25,000 paid to it by Coffin & Stanton at the timé the bonds were delivered, upon the ground, among others, that it had been determined in an action brought by
,At the trial the plaintiff proved that at the time the action was commenced and the receiver appointed, Coffin & Stanton had sold or disposed for Value of all of the bonds referred to in the complaint. Having made this proof, it consented to a nonsuit. The receiver thereupon proved the material facts set up in his counterclaim, i. e., the payment of the $25,000 by Coffin & Stanton' to the plaintiff; the use thereof by it to pay an antecedent indebtedness; his appointment as receiver of that firm; the judgment rendered in the action brought by the’Manhattan Company of the city of New York against the city of Iron wood in the Circuit Court of the
During the course of the trial it also appeared that the balance of the bonds delivered to Coffin & Stanton of the par value of $18,000 were held, $3,000 by Dudley P. Ely and $15,000 by the town of Greenburg, and that the receiver had endeavored, but had been unable, to procure possession thereof.
Upon the foregoing facts the referee reached the conclusion, as appeal's from his report and the opinion delivered, that the right of . action, if any, to recover the consideration paid by Coffin & Stanton passed to and was vested in the persons to whom such bonds were sold or pledged prior to the appointment of the receiver of that firm ; that the receiver took no title to such cause of action ; that the agreement with the trustee of bondholders representing bonds of the par value of $132,000 was ineffectual to vest in the receiver any right to recover, and he thereupon dismissed the complaint and the counterclaim, without costs.
I think the judgment appealed from should be affirmed, but not for the reasons assigned by the referee in granting it. If the receiver had been rightfully in possession of, and had surrendered at the trial all the bonds delivered to Coffin & Stanton, then it seems to me he would have been entitled to a judgment establishing his counterclaim. The action on the counterclaim was, in effect, one for a rescission of the contract between Coffin & Stanton and the city of Ironwood, and to recover from the latter the $25,000 paid to it for money had and received. The receiver represented
I am, therefore, of the opinion that the judgment appealed from should be affirmed, with costs.
O’Brien, Ingraham and Hatch, JJ., concurred; Van Brunt, P. J., concurred in result.
Judgment affirmed, with costs.