33 N.Y.S. 395 | N.Y. Sup. Ct. | 1895
This action was brought by the plaintiff, as receiver of the Powerville Felt-Roofing Company, against the defendants, to recover damages for the conversion of certain property alleged to have been wrongfully taken, carried away, and converted by the defendants. The complaint alleges that on the 21st of December, 1892, by a final judgment, the property of the Powerville Felt-Roofing Company, was sequestrated, and one Josiah Jewitt was appointed permanent receiver of said company, and of its property and effects, of every kind and nature whatsoever and wheresoever situated, and that on the 24th of December, 1892, said Jewitt duly qualified as such receiver, and continued to act as such receiver down to the 2d of March, 1893, upon which day he departed this life; that on the 13th of March, 1893, the plaintiff was duly appointed permanent receiver in his place, and that he had duly qualified and entered upon the discharge of his duties as such receiver, and has ever since continued to act, and is now acting, as permanent receiver of said company. The complaint then alleges authority to prosecute the action, the incorporation of the defendant national bank, and that on the 1st of February, 1893, the defendants wrongfully took, carried away, and converted to their own use certain merchandise belonging to said company, which was reasonably worth the sum of $19,000; and judgment is demanded for the sum of $19,000, with interest from the date of said conversion. The defendant Tobias New, by his answer, denies all knowledge or «belief as to the appointment of Said permanent receiver and as to authority to bring the suit, admits the incorporation of the defendant national bank, and denies the acts of conversion. The de
The ground upon which the appellant claims the right to offset the claims set up in his answer is that he is in equity entitled to a set-off because of the fact of the insolvency of the company and the circumstances under which the debts had their origin. We have examined the various authorities to which our attention has been called by the learned counsel for the appellant, but we are unable to see that any of them have any application to the facts which exist in the case at bar. Most of them are actions in equity, where the set-off is allowed upon the theory that a person asking relief in equity must do equity; and the others are where cross demands ex contractu exist against and in favor of two parties, and where, from the nature of the claims and the situation of the' parties, justice cannot otherwise be done. The most familiar instances of the rule are cases where a depositor in a bank is allowed to offset the amount of his deposit balance against indebtedness to the bank upon its - failure, although perhaps such indebtedness to the bank may not have been actually due at the time of the failure-of the bank. But we have found no case where, when the action is ex delicto for the wrong of the defendant, an equitable offset of the defendant will be allowed. If such a procedure could obtain, we might easily imagine a new way to get payment for old debts. All that a creditor of an insolvent corporation, of which a receiver had been appointed, would have to do in order to procure a preference over the other creditors of the corporation, would be to take possession of the property of the corporation and convert it to his own use, and, when an action was brought for its conversion, ask to offset his claim-. The mere statement of this proposition seems to show that the position of the appellant cannot be sustained. The interlocutory judgment should be affirmed, with costs. All concur.