54 N.Y.S. 787 | N.Y. App. Div. | 1898
The attachment here was sought to be vacated solely upon the ground that the complaint and affidavit failed to-set forth a cause of action against the defendants named in the-warrant. The rule is that, upon applications of this character, the attachment will be sustained unless the complaint and affidavits used upon the motion clearly indicate that the plaintiff must ultimately fail. Romeo v. Garofalo, 25 App. Div. 191, 49 N. Y. Supp. 114; Furbush v. Nye, 17 App. Div. 326, 45 N. Y. Supp. 214; Johnson v. Trim Co., 79 Hun, 407, 29 N. Y. Supp. 797. The question, then, is, are the plaintiff’s papers here hopelessly bad?
The claim is that the action is for moneys had and received by the defendants Rachel Moore, John C. Shaw, and Archibald IV Moore, individually, to the plaintiff’s use. The moneys are alleged to have been paid by the plaintiff under a contract for the sale-to it of certain shares of stock belonging to the estate of George-Moore, deceased; Rachel Moore and John C. Shaw being the latter’s executrix and executor. The sale was made directly to the-plaintiff. The averment is that the plaintiff had no power, under either its charter or the statutes under which it was incorporated, to purchase these shares, and that, as a cover for the real transaction, the contract of sale was made to “a man of straw” (oneClegg); that the latter assigned the contract to the plaintiff’s directors; that Shaw, who was one of these directors, signed a demand note for $10,000, payable to the order of the plaintiff; that this note was guarantied by all the other directors; that the plaintiff took it as thus guarantied, secured by the pledge of the contract of sale; that the plaintiff paid the amount named in the note, to wit, $10,000, to the defendants Rachel Moore and Shaw, as executrix and executor of George Moore; and that the form of a loan upon the security of the contract with Clegg was adopted because-the plaintiff, while not authorized to purchase stock, was authorized to lend money. The complaint appears to have been formulated upon two theories—First, that the contract was ultra vires; and, second, that it was procured by fraudulent representations-on the part of Shaw, made with the knowledge and by the authority of Rachel and Archibald Moore. The case upon the latter head may be summarily disposed of. The plaintiff avers that, -in consequence of its discovery of the fraud which had ben practiced upon it, the defendants Rachel Moore and Shaw were notified upon the-30th day of September, 1894, that it rescinded the contract. With full knowledge of the fraud, thus pleaded, the plaintiff avers that upon the 7th day of the following December it paid the defendant Rachel Moore, as executrix, the sum of $1,527.33 as interest upon the balance of the purchase price of the stock. This was a clear-
The defendants contend that, even if this be so, the action will not lie against them individually. It is, however, averred in the •complaint that both the preliminary negotiations and the final arrangement were between the plaintiff and Rachel Moore, Archibald Moore, and John C. Shaw. It is these three individuals who are charged with wrongdoing, not the estate of George Moore. It is true that they “alleged to” the plaintiff—such is the form of the averment—that, the shares were owned by two of them as executor and executrix of George Moore, deceased. But the entire arrangement was with the three individually. “An arrangement was made,” to quote an averment of the fifth paragraph, “by which It was agreed, between said plaintiff and said Shaw, Rachel, and Archibald, that the contract should be made for the sale of said •stock to a man of straw.” And, further, we find an allegation in the eighth paragraph that all of the certificates of the shares “were never owned and never held by said executors,” as set forth in the contract which they made with Clegg. The substance of the complaint on this head is that the three individuals, alleging (falsely, if this latter allegation be taken into consideration) that two of
It follows that there are averments sufficient, if proved, to charge the defendants individually for the moneys which they have received under this void contract. When the acts are fully presented upon the trial, it may turn out that Archibald Moore is only liable for the moneys traced into his hands. It is conceded that the effect of the averments as to him is that he received these moneys without consideration. That brings him within the general scope of the action for money had and received. Even if the averments, here were sufficiently clear to absolve him from a recovery with respect to the payments with which he was not directly connected, the attachment should still be sustained, even as against him. His remedy was to move, not for an absolute discharge of the warrant, but for a reduction of the amount for which it was issued. Sulzbacher v. J. Cawthra & Co., 14 Misc. Rep. 545, 36 N. Y. Supp. 8, affirmed upon the opinion of Daly, C. J., 148 N. Y. 755, 43 N. E. 990. The same observation applies to each of the other defendants. - As the papers, then, by no means clearly show that the plaintiff must ultimately fail in its action, we feel bound to sustain the attachment, notwithstanding the loose and inartistic manner in which these facts have been placed before the court.
The order appealed from shoxild therefore be affirmed, with $10 costs -and disbursements of the appeal. All concur.