Glenville Woolen Co. v. Ripley — 11 Abb. Pr. 87

Majority

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THE GLENVILLE WOOLEN COMPANY against RIPLEY.

Court of Appeals;

November, 1870.

Headnote

Substitution of Plaintiff and Attorneys.—Effect of Appeal on Conclusiveness of Judgment.

Substitution will not be ordered in the court of appeals, merely on the ground that the party asking it has obtained a judgment of the court below, in a cross action, declaring him entitled to be substituted as plaintiff and to control the action, while an appeal is pending from such judgment.^[1]

Motion, to substitute a different plaintiff and different attorneys.

Two actions were brought in the superior court in October, 1855, by the Grlenville Woolen Co. ; one against Joseph Ripley and the other against Alexander J. Cameron, to enforce the payment of subscriptions alleged to be due the company. In November, 1855, in an action brought in the supreme court by R. Gr. & J. Gr. Isham against the same company, which had meanwhile become insolvent, an attachment was issued against the property of the company, and the debts due from Ripley and Cameron were levied upon. In December, 1855, another attachment against the company, at the suit of Cousinery & Craig, was issued from the supreme court, and under this attachment, also, the debts due from Ripley and Cameron were levied upon.

Both of these attachments were directed to John Orser, sheriff of the city and county of New York. Soon after the issuing of the attachments, R. Gr. & J. Gr.

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Isham, plaintiffs in the - first attachment suit, gave security to the sheriff under section 288 of the Code, and carried on the action in the superior court, as the proceedings of the then sheriff, John Orser, and procured their own attorneys to be substituted as attorneys for the plaintiff, and those attorneys carried on the .suit under the direction and for the benefit of R. G. & J. Gf. Isham, and in July, 1867, they obtained judgment in favor of the plaintiff, which was affirmed by the court at general term in December, 1867. From this last judgment the defendants appealed to the court of appeals, where the appeals were pending and undeterr mined at the time of the present decision.

In February, 1869, Cousinery & Craig, who had obtained the second attachment above mentioned, against the property of the Glenville Woolen Co., after giving security under section 238 of the Code, brought a suit in the name of Orser, the ex-sheriff, alleging that the debts due from Ripley and Cameron had been duly levied upon under their attachment and had not been levied upon under the Isham attachment, and on this ground they claimed to control the suit in the superior court, and to have O’Brien, the then sheriff, substituted as plaintiff instead of the Glenville Woolen Co., and to have Brown, Hall & Vanderpoel, the sheriff’s attorneys, substituted in the place of Mr. Whittaker, the attorney of Isham. The suit was brought to trial, and a decree made in favor of the plaintiff, declaring the attachment of Cousinery & Craig to have priority, and enjoining Isham and his attorney from collecting the judgment of the superior court-; and from this judgment an appeal was taken by Isham and the Glenville Woolen Co. to the court at general term, which appeal was still pending.

The appeal from the judgment of the superior court in the suit prosecuted by the Ishams in the name of

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the company being now pending in the court of appeals, a motion was made on the part of O’Brien, plaintiff in the suit in the supreme court, to substitute himself as plaintiff instead of the Glenville Woolen Co., and to substitute Brown, Hall & Yanderpoel as attorneys for the plaintiff, instead of Mr. Whittaker. •

Lucien Birdseye, for the motion.

J. H. Reynolds, opposed.

The motion must be denied. It is based upon the ground that the respondent has no subsisting interest in the demand sought to be recovered in the* action: that the entire interest therein has become vested in attaching creditors, in whose behalf it is the duty of the sheriff to collect the money ; that the creditor who employed the attorney who prosecuted the suit to judgment, in the superior court, and who is the attorney of the respondents in this court, has no interest in the demand, as it is claimed that his attachment was never served.

From the papers it appears that there have been conflicting claims to any money that may be recovered in the suit, made by persons not parties to the record; and that these claims have been the subject of litigation between such parties, in an action commenced in the supreme court by the party in whose behalf this motion is made, against the other claimants, and perhaps others ; that judgment has been rendered in such action, declaring the moving party entitled to the fund, and restraining the other parties from interfering therewith; and that an appeal has been taken from such judgment, to the general term of the supreme court, which appeal is still pending.

This court cannot, for the purpose of this motion, in the exercise of its discretion, regard this judgment

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as conclusive, and finally determine the rights of the parties thereon ; as such judgment may be reversed. The papers contain no evidence tending to show that the attorney having charge of the case as attorney for the respondent in this court will not diligently and faithfully protect the interests of all interested in the fund, so far as the same are to be affected by any action óf this court. Were it otherwise, this court would provide for such protection by permitting other counsel to appear for that purpose. After the decision of the court upon the appeal from the judgment, the case will be remitted to the superior court,, where such proceedings may be had as shall be found necessary to determine the rights of all parties to the fund. It will be time enough for this court to pass upon any question raised in relation thereto, when brought here for revision upon appeal.

Motion denied.