Nehrboss v. . Bliss

88 N.Y. 600 | NY | 1882

The appellants concede that the only question raised upon the trial was as to the effect of the papers filed for the purpose of redemption. And the precise objection, as indicated by the points submitted by the learned counsel in support of this appeal, is that Seth P. Bliss is described therein as the redeeming party without words indicating that he is the survivor of himself and Pierce, as he is named in the judgment record under which he sought to redeem.

The proceedings are statutory, and it is to be conceded that words cannot be added to or omitted from the statute for any purpose, but on the contrary its language is to be construed strictly. The defendant claimed the right to redeem under section 1464 of the Code of Civil Procedure. He was, therefore, required to file in the county clerk's office, or deliver to the sheriff as evidence of his right; first, a copy of the docket of the judgment under which he claimed the right to redeem; second, if that right depends upon any assignment of the judgment, it must also be filed, etc.; and third, an affidavit made by him stating truly the sum unpaid upon the judgment

The copy of docket furnished by the respondents described a judgment in which "Seth P. Bliss, as survivor of himself and Jerome Pierce, deceased," is plaintiff. It was accompanied by no assignment or other paper, save an affidavit attached thereto, which, so far as material to our present inquiry, is in these words: "Seth P. Bliss, being duly sworn, says that he is the owner and holder of the judgment mentioned in the foregoing copy of docket of judgment, and that there is due," etc. Upon the death of Pierce, the legal right under the firm contracts or causes of action, and the sole right to collect the partnership debts, remained in the survivor (Viner's Abr., Partners D.; Lindley onPartnership, vol. 1, p. 505; Voorhis v. Childs' Ex'r,17 N.Y. 354), and vested so effectually that upon his death it would have devolved upon his personal representative, and he alone could sue upon it. (1 Williams on Exr. 1585; Copes v.Fultz, 1 Sm. Mar. 623.) So if Bliss died after judgment, redemption could have been had under section 1466 by the executor or administrator of Bliss.

The right to the cause of action, and to sue therefor, came to Bliss by survivorship, and that is indicated in the title of the judgment. But so completely was it vested that a demand against him in his own right might have been set off in diminution of his claim as surviving partner (Slipper v. Stidstone, 5 Term Rep. 493), and conversely (French v. Andrade, 6 id. 582). It follows, therefore, that as surviving partner, he might join in one action a count for a debt due him in his own right, and one due him as survivor. (Adams v. Hackett, 27 N.H. 289.) Or a plaintiff in an action charging him in his own right, might recover a demand due from him individually, and another due from him as surviving partner. (Richards v. Heather, 1 B. Ald. 29.) Therefore, although the action was in his name as survivor, it was his own, and he had the legal title to the judgment, as much so as if the cause of action had stood in his own right. (Kemp v. Andrews, 1 Showers, p. 188, case 138; Murray v.Mumford, 6 Cow. 441; Daby v. Ericsson, 45 N.Y. 786.) Consequently it was not necessary for him as redeeming creditor to present any assignment of the judgment to himself, or add to the statement in the affidavit any other words showing his identity with the judgment creditor. He was in law the owner of the judgment, and appeared to be so on the face of the papers. No other point needs consideration. The redemption, for aught that now appears, was made according to the letter of the statute, and the order appealed from should be affirmed with costs, and judgment absolute rendered in favor of the defendants and against the plaintiffs, pursuant to their stipulation.

All concur, except TRACY, J., who does not vote.

Order reversed and judgment affirmed.