13 N.Y.S. 774 | N.Y. Sup. Ct. | 1891
The action was brought by the plaintiffs to establish a lien in their favor, or their right to priority in payment out of property sent by the defendant St. Amant, and at his instance, from France, to Joseph M. Pease, now deceased, to be sold by him at the city of New York. On the trial, as it was first completed, the right of the plaintiffs to their alleged lien and priority of payment was maintained by the court, and that was affirmed by this general term on appeaj. After that affirmance the amount due the plaintiffs was paid out of moneys in the hands of the receiver appointed in the action, and the plaintiffs were thereby excluded from the residue of the controversy, which has been confined to the defendants themselves. The Mechanics’ National Bank and the National City Bank of the city of New York became creditors of Joseph M. Pease, who was a defendant in the action in the earlier course of its proceedings, obtained attachments against him, and seized, under the same, the property and demands remaining in controversy as his individual assets; and they recovered judgments against him in their actions, and issued executions, under which levies were probably made. The defendant St. Amant asserted a superior title in himself to the property, and upon a motion made for that object, and with the assent of the parties, a receiver was appointed, who obtained possession of so much of this property as was levied upon, and sold the same, and also collected the outstanding debts owing for the alleged sales of other portions of it. The debts for which these banks recovered their judgments were individual liabilities of the defendant Pease alone, and it was objected on behalf of the defendant St. Amant that they were not entitled to be satisfied out of so much of this consigned property or its proceeds as remained owing to him for his share of the venture, °or joint enterprise; and, if that were .the nature of the dealings between himself and Joseph M. Pease, then the result claimed in this manner would seem to legally follow, for the individual creditors of a partner or joint owner of property can levy upon and appropriate to the payment of their debts by judgments recovered and executions issued against him no more than his interest in the property. This principle has been already well sustained by the authorities. Wilson v. Gonine, 2 Johns. 280; Kaufman v. Schoeffel, 46 Hun, 571, 576, 577; Atkins v. Saxton, 77 N. Y. 195; Banking Co. v. Duncan, 86 N. Y. 221; Saunders v. Reilly, 105 N. Y. 12, 18, 12 N. E. Rep. 170. Whether the property seized was within this principle was not decided by the court on the first part of the trial; but, after the evidence then offered had been received, it was deemed to best comport with the rights and interests in this manner brought in controversy that the parties to it should be supplied with the opportunity to produce additional evidence affecting it which might more fully and satisfactorily result in its determination. The agreement under which the property had been consigned by St. Amant and his assignor had been found as a fact by the court, and a reference was directed “to ascertain and report—First, what particular portion of the merchandise or the proceeds of sale thereof which came to the possession of the receiver appointed in this action were received by defendant Pease from the defendant St. Amant under the agreement between them mentioned in said decision; and, second, whether the indebtedness for which said defendants the Mechanics’ National Bank and the National City Bank have so recovered judgment was an undivided indebtedness of said defendant Pease, or whether it was for advances
Whether this reference was strictly regular, is not a matter now requiring consideration for the reason already mentioned, that there was not when it was directed the slightest opposition to it, by the counsel. Under its authority evidence was taken which, with that then in the case, was considered by the referee, and afterwards by the special term, to warrant the conclusion that; the defendant St. Amant had maintained a paramount right over that of the banks to the fund in the hands of the receiver. The foundation of this title was a letter written by the defendant St. Amant to and accepted by Joseph M, Pease. This letter stated the terms under which the business of these parties was to be managed and carried on; and as they have been expressed in the letter they were as follows: “Your favor of 5th inst. is duly at hand. I had an interview with the packer (Dumagnou) and owner of the Billett brand, who is willing to give us the monopoly of these sardines. The agreement is as follows: We to advance 80 per cent, of cost of each invoice as they are forwarded from the factories, this advance to be halved by you and I. As a'basis we take the amounts of 1,000 of American ¿s, and 4,000 cases of 100 low |s, to be handled during the season. We to have the liberty of stopping shipments and annulling the agreement at any time during the season if we find it unprofitable, or have any other good reason. Interest to run on the account of 6 per cent, per annum. No commission to be charged by us, nor profit to be added by him. You to charge brokerage only when actually paid by him. Goods to be sold from wharf, unless some very good reason should exist for doing otherwise. Any loss occasioned by failure of your buyers to be supported in thirds, one-third each by you, the owner of the brand, and myself. The total of net proceeds of ail accounts sale, compared with the total cost, shall determine the profit of the season, which shall be divided in thirds in same manner as stated in previous paragraph. If this Should show a loss, this loss is borne by the packer. There are about 500 cases of tins cut to size of old American J, which will be sent on first, in order to get as many in as possible under the four-cent duty. In studying the
The evidence given on the trial, and afterwards upon the hearing before the referee, tended to sustain that position, for it was shown that the sardines shipped by the defendant St. Amant, or under his directions, had been delivered to Pease, and that also was found to be the fact by the interlocutory judgment, and that their business had conformed to the letter accepted for its