49 Barb. 73 | N.Y. Sup. Ct. | 1867
It appears on the face of the bond upon which this action was brought, that if it was executed to the plaintiff as receiver, &c. and considering this, and the circumstances under which the bond was executed, I think its, execution must be deemed an admission by the obligors, not only that the plaintiff had been duly appointed receiver, but also that the receiver was authorized to bring the action mentioned in the condition of the bond. It appears to me therefore, that it was not necessary for the plaintiff on the trial, to introduce the original affidavit and supplemental order in the court of common pleas, nor to show the judgment recovered, and execution issued and returned; especially as the defendant Buncombe had not set up in his answer, that the plaintiff had not been regularly appointed receiver, and made no attempt to show that he had not been, on the trial. I doubt whether it was necessary for the plaintiff to introduce even the original order appointing him receiver, or his bond as receiver.
The plaintiff was first appointed receiver by Judge Hilton, of the common pleas, in 1861, in two cases, the judgments in which amounted to $2243.77. The bond on which this action was brought was given in April, 1862; its penalty'is $5000, and its condition, to obey and pay any judgment the plaintiff might recover against the defendant Caroline C. Hatch, in the action brought by the plaintiff as receiver, and mentioned in the condition of the bond. Subsequently, and in July, 1862, the plaintiff was appointed receiver in two other cases, by Judge Brady of the common pleas, the judgments in which amounted, in the aggregate, to about $3500. Subsequently, and in December, 1864, the plaintiff recovered judgment in the action brought by him as receiver, mentioned in the condition of the bond, against the defendant Caroline C. Hatch, for $11,003.63. The defendant Dun
This point is not without force, but I think the answer to it is, that he must be presumed to have known the law, when he executed the bond, and that the plaintiff might subsequently be appointed receiver in other, cases, and if he was, that there might be a judgment .against Caroline C. Hatch in the action by the receiver in which the bond was executed, for an amount sufficient to cover and satisfy the aggregate of the judgments in all the cases in which the plaintiff had been appointed receiver. The condition of the bond being to obey and pay any judgment the plaintiff, as receiver, might recover in the action in which the bond was given, I do not see how the defendant Buncombe can avail himself of this . point.
As to the direction in the judgment obtained by the receiver in the original action, that any amount collected of the defendant Ferris on the separate judgment against him should he credited on the judgment against Mrs. Hatch, if you deduct from the judgment against Mrs. Hatch the #2000 paid by Ferris to the receiver, there still remains due on the judgment against Mrs. Hatch an amount far beyond the penalty of the bond, for which the judgment in this action was rendered. The direction in the original judgment obtained by the receiver is, that the money collected of Ferris be credited on the judgment against Mrs. Hatch, not on the bond on which this action was brought. Though there is certainly some show of equity in the position taken by the defendant Buncombe as to the application of the #2000 received of Ferris, yet I do not see how we can consider that money as received and indorsed on the bond.
Upon the whole, though I am not free from doubt whether . the judgment on the bond, as to the defendant Buncombe, should be affirmed to its full extent, yet I think it must be so affirmed, with costs. ,
Leonard, Sutherland and Ingraham, Justices.]
