211 A.D. 17 | N.Y. App. Div. | 1924
The action is brought to recover upon twenty-two promissory notes, the aggregate principal of which amounts to $61,600. The defendant, Edward De V. Tompkins, Inc., made and delivered the notes sued upon to the plaintiff. The complaint contains twenty-two causes of action all based on such notes and containing'the usual allegations. The answer of the defendant denies the allega
The facts alleged in the pleadings in the case at bar and shown by the various exhibits are extremely intricate. Prior to October 29, 1917, when the assignment of the so-called sewer contract was given by the defendant to Leary & Co., the defendant corporation had been organized and had taken from the city of Bridgeport a sewer contract. The defendant corporation thereafter took from the same city contracts for the construction of two bridges. To furnish funds for the construction of the sewer the plaintiff borrowed of Leary individually $61,600 and turned over such sum to the defendant corporation. Tompkins borrowed a similar sum from Leary & Co. and paid his $61,600 into the corporation treasury, and Williams received the promissory notes now sued upon as evidence of such loan or deposit. Being common stockholders of the defendant coiporation, it is evident that Williams and Tompkins, in case the sewer contract was satisfactorily completed, would share in the profits, and that the promissory notes so given would be deductible before ascertaining profits. Such was the status of the parties when- the defendant corporation had trouble with the city of Bridgeport concerning the bridge contracts. The city ousted the defendant and took possession of the works. Having been so ousted from the bridge jobs, the defendant brought an-action against the city of Bridgeport to recover the sum of $300,000 damages, the proceeds of which judgment were assigned and agreed to be paid by the Tompldns corporation to Leary & Co. under the terms of an agreement dated December 31, 1917. This agreement preserved the respective rights and interests of Leary & Co. in respect to profits on the bridge jobs, Williams not sharing therein. In 1920 a judgment was obtained against the city of Bridgeport for $206,000 as the result of the aforesaid litigation, which sum was collected by Leary & Co. pursuant to the aforesaid assignment. Leary & Co. having failed to pay Tompkins, an interlocutory judgment was obtained for an accounting; and it is stated in the
After the trouble in respect to the bridge jobs, Leary & Co. insisted on taking over the sewer contract, in which Williams and Tompkins were to share the profits equally. On October 29, 1917, an assignment of such sewer contract was made to Leary & Co. The agreement of October 29, 1917, was between Edward DeV. Tompkins, of the first part, Edward DeV. Tompkins, Inc., of the second part, and Leary & Co., of the third part; and it was therein provided that the intention was to relieve the party of the second part from the further performance of the said sewer contract. The agreement, after stating all of the facts which brought about the assignment, contained the further provision that the party of the third part agreed to perform all of the covenants of the second party in respect to the sewer contract and agreed to assume all debts, obligations and liabilities which arose or grew out of the said sewer contract, and also released the parties of the first and second parts from any obligation to repay any and all advances made by Leary & Co. to either of the aforesaid parties. The plaintiff was not a party to this agreement, and for that reason the counterclaim on the former motion was stricken out. It is apparent, however, that having taken over the sewer contract and having also collected the judgment recovered against the city of Bridgeport in the litigation over the bridge contracts, Leary & Co. have in their possession funds which finally should go to discharge the notes sued upon. The notes in suit grew out of the sewer contract and represent money paid into defendant’s treasury for the purpose of carrying out such contracts, and the defendant may be entitled to receive from Leary & Co. considerable sums of money applicable to the payment of such notes; and it is also claimed that Leary & Co. have agreed to pay such obligations. Such being the case, I think the defendant has brought itself within the provisions of section 193 of the Civil Practice Act, and that the members of the copartnership firm of Leary & Co. should be brought in as parties defendant under that section. There is nothing inconsistent therein with our decision and opinion on the former appeal.
The order appealed from should be affirmed, with ten dollars costs and disbursements.
Order affirmed, with ten dollars costs and disbursements.