86 N.Y.S. 1083 | N.Y. App. Div. | 1904
This is an appeal from a judgment in plaintiff’s favor setting aside ■ certain deeds of property belonging to John T. McKane, now deceased, as fraudulent. Brior to the bringing of this action John T. McKane, who was then living, had the title in fee to many distinct parcels of real estate which are particularly described in the complaint, some of which were transferred to his brother, James McKane, and some to George W. Roderick. The parcels thus separately deeded had, at the time of the commencement of this action, by mesne conveyances, in the making of which the appellants were concerned, come into the possession of Fanny McKane, wife of John T. McKane.
It will be noticed that this is a judgment creditor’s action, the basis of which is necessarily the obtaining of a valid judgment against the debtor and the return of an execution against his property unsatisfied. If, therefore, the plaintiff had no right to sue upon the note and obtain a judgment, or, having the right to obtain a judgment, had no right to issue an execution to collect it-against the property of the debtor, then it would follow that she had no right to institute this judgment creditor’s action.
Section 2595 of the Code of Civil Procedure provides that in a case where “ the value of the estate or. fund is so great that the surrogate deems it inexpedient to require security in the full amount prescribed by law, he may direct that any securities for the payment of money belonging to the estate or fund be deposited with him, to be delivered to the county treasurer or be deposited subject to the order of the trustee, countersigned by the surrogate, with a trust company duly authorized by law to receive thé same. After such
Pursuant to this provision, the note was deposited with a trust company which was alone entitled to “receive or collect” any of the property or interest secured thereby; and we have been unable to find any warrant for the step taken by the plaintiff, while it thus remained in the custody of such trust company; in suing upon a nofe which was not in her possession and to which she had not obtained the title.
It may be suggested that in analogy to limited letters of administration, which are issued to collect death claims based upon negligence, a distinction is to be observed between the right to sue and the1 right to collect. By reference, however, to the statute under which such limited letters are issued (Code Civ. Proe. § 2664) it will be noticed that while the right to collect is withheld, the right to sue is expressly given. Under section 2595 of the Code, no such right to sue is given; and although the surrogate might, by subsequent order, have conferred such right, which we do not decide, because unnecessary, it is not contended that any such order in the present instance was granted. Even if there were a doubt upon this subject, which we do not entertain, holding as we do that the plaintiff could not without the permission of the surrogate sue upon the note while it remained in the custody of the trust company, there cannot be the slightest, doubt upon the further proposition that the plaintiff had no right to issue an execution upon the judgment, because that is expressly forbidden by the section.
We do not think, moreover, that a payment to the plaintiff, if made after the deposit of the note with the trust company, would have discharged the obligation of John Y. McKane upon it, particularly without his having obtained repossession of the note. This, however, the plaintiff could not give him and as long as she had no power or authority to get the note for the purpose of surrendering it, she was not in a position to ask, demand or receive payment. As she could not, therefore, legally receive payment from the debtor and discharge him, it is difficult to see upon what theory she could sue for and obtain a judgment against him and thereafter issue execution to collect it.
It is suggested that even though we reach the conclusion that the plaintiff as administratrix had no right to obtain the judgment and issue the execution, still, for the purpose- of maintaining this judgment creditor’s action, there is another view upon which it can be supported, namely, that she subsequently obtained, as an individual, ail right, title and interest in and to the note. In this connection our attention is called to the fact that upon the trial (and against the opposition of the defendants) an amendment was allowed
The obvious answer is that all these things occurred after the obtaining of the judgment and the issuing -of the execution upon which this judgment creditor’s action is based; and it would be a curious process of reasoning which would render a judgment in favor of the plaintiff as administratrix, which was invalid when obtained and upon which she had no right to issue execution, perfectly valid and effectual for the purpose of supporting' the execution upon the ground that she had at a much later date got possession of and title to the note as an individual. We do not think that the plaintiff, because of the subsequent delivery of the note to her as an individual, could obtain any rights in a judgment which as administratrix she had improperly obtained.
We do not deem it necessary to discuss the merits as to the validity of the transfers made by John T. McKane in his lifetime, nor the numerous other questions which have been presented by the appellants, thinking as we do that the objection which- we have been considering and which lies at the very foundation of the plaintiff’s right to maintain this judgment creditor’s action is fatal to such right.
The appeal of the defendant Fanny McKane from the two orders denying motions to postpone trial must be dismissed. The order amending, summons and amended complaint must be affirmed. The proceeding to bring up for review upon the appeals from the judgment the order amending the summons and amended complaint, and the two orders denying mOtitins to postpone -trial must be dismissed.
The judgment must be reversed and a new trial ordered, with one bill of costs to appellants to abide the event.
Tan Brunt, P. J., Patterson, McLaughlin and Laughlin, JJ., concurred. •