*1 1871.] Lynch v. Johnson. 27 of
Statement case. J. Edward C. Appellant, Leonard Respondent. bill, of the Code for 294 furnish a substitute the creditor’s Sections formerly order, sections, The service of the takes used. under those place system, of gives of the commencement a suit under the old priority vigilant creditor, upon creditor the of a equitable of the assets debtor. judge, 294, of requiring
A final order a section a debtor of defendant debt to the renders this lien effectual; liability pay, pursuance order, payment, or such by creditor, is a to the debtor in an action defence Iona assignee purchaser an to be a who is shown for value of the fide claim, prior acbruing of the lien. 12,1871; September (Argued May term, 1871.) decided Appeal from order General Term of the Supreme district, Oourt in first a judicial reversing favor of entered a an verdict, reversing a motion for new new trial, denying granting trial.
This was action for the from the defend- recovery firm ant, & partner Bliss, Johnson surviving of the balance of due to 0. Acker $911.50 for Henry services rendered them as clerk, and the further sum dollars collected fifty-eight said defendant as such for partner Acker, both of surviving sums in his have complaint alleges assigned him, executed duly 1st for valuable The defendant consideration. first in issue the put and then its execution at assignment generally, its He then, time of date. his indebtedness admitting to Acker of the said sum of dollars, collected for fifty-eight him as above further sum $127 the bal- ance of share profits sale purchase account of a lemons, joint quantity all amounting *2 of case.
Statement for the of commencement $185, sets up as a debtor to Acker relation the defendant of examination Inq-baham, one jus- indebtedness, before to Judge of an execution on return Court, tices of Supreme favor in that court in of unsatisfied, issued upon judgment said Acker for Thomas and -William against Ryer Ryer the said on $1,191.30, and an order made thereon justice by defendant was the 16th of March, 1863, by day of Thomas $185, to the said sum directed pay on their and William to be credited or their Ryer attorney, said judgment.
On trial of the. at the intro- circuit, issues plaintiff Acker, him the said from duced bearing date, and public, duly notary acknowledged 1863, con- March, him for the 5th (the day plaintiff) all the dollar, of one sideration transferring assigning firm claims and interests he had of John- rights, against & Bliss, son Edward C. Johnson personally, risk, have and hold the same at his own for himself then rested. facts evidence on the then following appeared by examina- that an order for his defendant Johnson:
part the 4th and the affidavit date tion, March, day bearing were which it was served day; granted, contained direction for the service that the said order thereof Acker, and of said affidavit of such service on proof 6th March was day given. under the on the 16th examined Johnson was day month of the return thereof, of the same same made on the day directing order was thereupon the said the said debt Thomas $185 him to on their be alleged credited judgment, William-Ryer, of the defendant. answer had in the of Acker and presence The said examination was said either of them about an by nothing attorney, debt of Johnson’s plaintiff. examined on pi-oceeding.
1871.] v. Johnson. Commission, per Lott, Oh. C.
It cross-examination Johnson appeared, by that he had not over the as directed paid money order, but notes over due given therefor, security, this suit was commenced. Those notes not indorsed were and he had not they thought paid. After this evidence was the said 0. Acker given, Henry was examined in relation to the *3 the assignment.
His in is stated testimony question sufficiently of the chief commissioner. opinion “ At its close, the if the judge charged jury Acker-was executed on March on or assignment by 5, 1863, the .service, before on March him the 6, 1863, on of March 4, 1863, was entitled Judge Ingraham plaintiff to recover.” To which the defendant charge duly excepted.
He also instructed them that the amount the ease, entitled to was the said recover, sum §189.05, interest, which the defendant also excepted. Theodore D. Timón for not received appellant. (Points by reporter.) E.
John Parsons No tice to the respondent. judg ment was not debtor v. 4 necessary. (Keness How., Harding, 8 178; Prince, Abb., Foster v. 18 407; C., S. How., 258, v. T.; N. Y. Gen. 10 Seeley Garrison, Abb., 460; Holmes 15 v. Abb. P. Jordan, R., 410, note; Parker v. Hunt, id.; v. 15 Abb. P. Beebe, R., 372; Abb., Ward affirmed in 1; 37 N. Y., v. Gibson The Haggerty, service 554.) issuing of the order created the debt, which was perfected the order to the directing payment Byers. (Edmonston 16 N. v. McLoud, Plaintiff Y., took to this subject 22 N. lien. (Bush Lathrop, Y., 535.) It is Lott, Ch. C. to consider the effectof the unnecessary order made Justice the defendant in Ingraham, directing this action to amount of his indebtedness to Acker Commission, per Ch. William his creditors. over to Thomas Ryer, failed has to establish sum, any right of it was erroneous. His own testi- therefore his recovery that the established fact assignment mony clearly his title was delivered to which he claimed Lynch, plaintiff. it in answer to the
He did, true, counsel, whether the that it his, signature assignment say that it executed Hew York March was; 5; it and executed on and he after- went before a notary day; was executed stated that ward early o’clock; nine cross-examination dis- morning, did not see the fact that he closed either at the time the behalf, that no one was present when was signed acknowledged on his direct said, He addition examination, the notary. as above relation to the execu- testified, to what *4 at that resided he, time, tion assignment, Syra- had to Hew York the and that he come cuse, night “ matters, 5th March on some to see private the about left, and that he on his return claim,” this to Syracuse, “ of the 5th of noon, o’clock,” eleven March, about about there night eight. reached “ he said that his cross-examination he On the got city of the fifth York morning of Hew ” or four hours; three was there matters private had come down about related to his he mother’s which that Mr. his own; Marcou, also to affairs, and attorney one of the he saw in reference to persons time, asked whether he could recollect on of see- being them; “ answered, he no else, special persons,” anybody ing ato whether he in answer remembered question, afterward on else business which brought that he saw anybody “ he I think Marcou, Mr. not.” He but York, Hew “ that his business with Mr. Marcou was after then, stating Mr. claim this “to Johnson,” in relation try ” whether he made on asked effort to it; being any collect isn.] Commission, per Ch. I had to
collect he than what it, “ more answered, nothing do with Mr. Marcou.” col-
After him -to that he made an effort with stating he made; lect he it, he was what was the effort asked, “ I in the answered: stated to Mr. the facts ease, Marcou and he then, advised He me to make assignment.” “ to col- asked that is the effort made question, you ” it, answered, “ lect ? sir.”' assignment yes, making He he Mr. was then if remember asked, could anybody at that whom he knew, whom he saw Marcou, time, I as I can,” “ answer don’t know was, question, “ You whose name saw, can’t recollect whom you anybody ” “ ? recollect but Mr. Marcou He Hot answered: posi- you ; I can’t.” And after served sheriff tively stating for the examination papers next about the middle of day, “ asked this Will swear home, was you got question: fifth of March on which it was you positively ” “ I He answered: will swear this ? executed best recollection was.” that to the of my positively, that in Had left court, “ He then asked you his hands for collection previous “ ” % I had to Mr. he said written And reply, it.” Marcou behalf further examined on was then
He to a real estate that Mr. Marcou attending and stated mother interested, then suit pending, *5 for more than two had years conducting, he that the time suit, him at same he to see about he went that his claim Johnson. He also him relative to saw that the to different in answer questions, Lynch, plain- whom he to owed brother-in-law, money; was tiff, it much, how was not recollect nearly could thought that it was that account the $100, made him. the nor Mr. were Marcou
Heither plaintiff, Lynch, than I referred and no other evidence have above examined, per Eael, the Commission, in the relation to assignment. was given it deliv- warrant the that was ever That does not inference or that ever ered to or the .it accepted by Lynch, came to his or fact even knowledge. possession, can, or of such hio possession knowledge presumption from drawn trial, under the circumstances disclosed on the be the its at that It plain- time. does not production appear the record. tiff Mr. Harcou was his was present. attorney and not the him, The complaint signed verified either of other any is not them or person. the facts, connection with Acker’s These testimony made to the claim the effort he collect was by assign- making had stated of Mr. to whom he Harcou, ment under advice that he answer to court facts, question by its tend show collection, Mr. written to Harcou not of counsel, Hr. Harcou was in fact attorney all I find events, this action. At justify nothing ever delivered conclusion erred or'to other any person judge submitting jury. and the evidence to it,
The verdict was without support order made entered thereon Special judgment trial reversed. Term new were denying properly trial that the of reversal new It follows granting must be affirmed, absolute, costs must be with costs. rendered against appellant section 294 C. The Code proceeding Earl, of the order on the service commenced by completely all debtor, and notice the debtor of the could have been omitted. to Acker (Gib the proceeding that a Y.,N. direction son v. Haggerty, copy affidavit and order should be served upon and its him notice of proceeding, designed simply give was not to the foundation pro object any purpose lay the effect What, then, was ceeding against personally. Johnson? of the service of the order *6 18Í1.] Commission, per Earl, C. under sections 292 and 294 the Code are
Proceedings of the same scheme for collection debts parts inaugu rated the Code. sectionsfurnish a substitute simple These for the creditor’s used in The bill, formerly Chancery. commencement of the creditor’s suit in gave Chancery creditor once assets upon equitable judg ment debtor. v. 494; 2 Sandf. Brown (Storm, Ch., Waddell, 42 N. Y., He was rewarded Nichols, 26.) vigilant creditor, commencement of his as an suit regarded actual the debtor. levy upon assets of Hnder equitable sections 292 and service of the order takes the place commencement suit under the old system, should creditor the give judgment priority vigilant and a lien creditor, assets of debtor. equitable (Edmonston v. 16 N. This lien ren McLoud, Y., dered effectual the final order of the judge, directing defendant to debt to judgment Acker; or a against payment, liability pay, pursu ance order, a defence to this action, the plaintiff shown having himself Iona the claim purchaser fide the defendant for value. against the General Term affirmed, should be absolute should he rendered with costs. CC., concur
Leonard, Hunt, Gray, Earl, with 0. concurs Ch. C. Gray, 0., Lott, Oh. no as to 0., expresses discussed opinion Earl, of General Order Term affirmed, absolute with costs. against plaintiff, HI.
Sickrls—Yon.