Drought v. Curtiss

8 How. Pr. 56 | N.Y. Sup. Ct. | 1853

Gridley, Justice.

The supplemental answer under the Code is a substitute for the old plea puis darrien continuance; but it differs from that plea in this respect; that the supplemental answer may be allowed on motion, whenever the facts forming the ground of the answer, have occurred since the answer was put in, or where the defendant was ignorant of .them at the time of pleading the first answer; whereas the plea puis darrien, could strictly be pleaded only before or at the next continuance, after the facts transpired (see § 177 of the Code, and Gra. Pr. 256). Where the facts asked to be incorporated and pleaded in a supplemental answer, go to divest the plaintiff of the right to maintain the action; and transfer the cause of action to another, who has received satisfaction for the demand involved in it, it is the duty of the court to grant the motion. The word may in such a case, means must; and it will make no difference, whether the' motion be made at the earliest day or not. The facts amount to an entire satisfaction of the cause of action, and whenever pleaded and established, they utterly extinguish the plaintiff’s right to prosecute it.

The only material question, therefore, to be decided, would seem to be whether the facts stated in the affidavit amount to a .defence, that' puts an end to the .cause of action of the plaintiff. It is not denied that, whatever chose in action would pass to a receiver appointed in a creditor’s bill, would also pass to a receiver appointed under an order made in proceedings supplémentary to an execution under the Code. In truth those proceedings were intended as a substitute for the old practice in chancery on a creditor’s bill. In the case of Gillet, receiver, vs. Fairchild (4 Denio, 80), it was decided that the terms “ chose in action ” and “ things in action,” embrace demands arising out oí torts as well as causes of action originating in a breach of contract; and that no assignment to a receiver is necessary to enable him to sue in his own name. The same principle was reiterated in Hudson vs. Platt (11 Paige, 183) In those cases, it is laid down that though a personal tort as an assault' and battery, is not assignable and dies with the person, yet the right of action -for an injury to personal property, survives by statute to the representative, and is transferred to the receiver and vests in him « under the order to that effect. Under these authorities, therefore, the plaintiff’s cause of action was transferred under the summary proceedings, to the receiver, appointed by the judge; and he became vested with it, and was authorized to sue for it in his own name {see § 144 of the Code, and 5 How. Pr. R. 441). The plaintiff’s counsel insists that the order should not be granted, because the receiver omitted to proceed, and the defendant omitted to make this motion for nearly a year after the appointment. I have already given an answer to this objection; and it may be said in addition, that the sale of the chose in action, so. as to authorize the settlement of the demand that has since occurred, did not take place till the third of last January. It is also true that the plaintiff had no right to proceed in the suit after the appointment of the receiver. His right to the cause of action was divested, and he had no right to proceed in the action, any more than any stranger to the suit. This consideration is an answer to his claim for costs. It may be that the proceedings of the defendant have been hard, and the receiver may have sold the demand for too small a sum. But the receiver has given bail for the faithful discharge of the trust committed to him, and is responsible for any abuse of it to his cestui que trusts. Besides, he had a discretion to determine whether he would permit an expensive law suit for a doubtful and contested claim, or sell it for what he could get for it. At all events, the proceedings of the defendants are legal, so far as I can discover, and there does not appear to be any sound objections to the motion.