Hull v. Smith, 8 How. Pr. 281

Hull v. Smith

8 How. Pr. 281 | N.Y. Sup. Ct. | 1853

Roosevelt, J.

The pleadings admit that Mrs. Hull, with her own separate funds, purchased all the claims and demands of E. H. and J. K. Bradbury, against the firm of Hull & Smith, and that the agreement was, that they should be assigned to her by a proper instrument in law to effect that purpose.

The assignment was accordingly executed, and the consideration ($2,500) paid.

There are some formal defects in the instrument—real or only apparent—one is that the draftsman, not knowing that the demands were in judgment, described them as notes and bills; the other, that not being a very technical lawyer, instead of maln'ng the assignment to a trustee to hold for her, Mrs. Hull’s separate use, he made it “ to and for the use of her separate estate.”

A full and valuable consideration having been paid and accepted, she is entitled, if necessary, to have the instrument reformed, or which in effect is the same thing, it being a case of mere personal property, to have the instrument treated as if it were reformed and made conformable to the agreement.

She now asks to have the benefit of her purchase; the action is in one view an action on the judgment.

The obligation of the defendant, Smith, to pay that judgment, and to pay it to Mrs. Hull, is the cause of action, and there is no other cause of action. Other persons are made defendants, not to assert other causes of action, but' for the protection of Smith against any technical claims founded on *285informalities which they might set up. He certainly has no right to complain that they are brought into court—had they been omitted some color would have existed for objection on his part, not indeed for excess, but for defect of parties.

“ Any person may be made a defendant who has, or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein.” Code, section 118.

Judgment must be entered declaring the rights of the plaintiff as above explained—enjoining the defendant, Bradbury, from intermeddling with the judgment entered on the assigned demands, and requiring the defendant Smith to pay the plaintiff for her sole and separate use, the amount of the said judgment and interest, and also the costs of this suit.

Note.—It is perhaps proper to state, that the assignment in question was executed by John K. Bradbury, the firm of the Bradburys being at the time dissolved, and he having acquired the sole and exclusive ownership of the claims against Smith and Hull.