Edgerley v. Blackburn — 140 A.D. 419

Majority

p. 419

Oscar M. Edgerley, Respondent, v. Samuel P. Blackburn and Eugene H. Morse, Appellants.

First Department,

November 4, 1910.

Headnote

Usury — usurious agreement—evidence—jurisdiction of inferior court to render judgment — supplementary proceedings — when receiver does not acquire title to judgment debtor’s property — failure to execute bond — filing order of appointment — accounting — credit for sums-expended on plaintiff’s property.

An agreement made in consideration of a loan of 810,000 evidenced by the borrower’s note for that amount bearing six per cent interest, by which the borrower agrees to transfer .certain sailing vessels to the lender in trust to manage the same until the loan and any advances on account of the vessels shall be repaid, and allowing the lender to charge to each vessel’s account a commission on all charters secured, and to charge interest at six per cent on

p. 420

all moneys advanced for disbursements or otherwise, and two and one-half per cent commissions on all moneys advanced, including the loan aforesaid, is usurious and void upon its face.

In an action to secure the cancellation of such note and a retransfer of the vessels, an allegation that the defendants subsequently acquired title to the vessels through a receiver appointed in supplementary proceedings against the plaintiff based upon a j udgment of the City Court is insufficient as a defense, if the answer do not allege facts showing that the City Court had jurisdiction to render the judgment or that it was “ duly” rendered.

A City Court, although one of record, is a statutory court of inferior jurisdiction, and tlié facts necessary to jurisdiction will not he presumed, but must be made to appear affirmatively. ' ■

A certified copy of a transcript of the judgment of a City Court is no proof of its jurisdiction to render it.

Moreover', the receiver through whom the defendant claimed to have acquired title to the vessels had no authority to sell them, where he did not personally execute and procure the approval of the bond filed by him- according to the provisions of section 715 of the Code of Civil Procedure, and the order appointing him was not filed in the county where the judgment debtor resided.

A decree setting aside such usurious note and directing the defendant to account for the vessels should not require him to pay to the [plaintiff au moneys received on account of the vessels, but he should be allowed credits for such amounts as were reasonably and necessarily expended in connection therewith.

■Appeal by the defendants, Samuel P. Blackburn and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of May, 1910, upon the decision of the court, rendered after a trial at the New York Special Term, canceling and discharging as usurious and void plaintiff’s note for $10,000, and an agreement between the parties, and directing the defendants to retransfer to plaintiff an interest in certain ships and to render ari accounting.

J. Stewart Ross, for the appellants.

Hugh M. Hewson, for the respondent.

On the 1st of February, 1902, the parties entered into an agreement by which, in consideration of a loan of $10,000, evidenced by plaintiff’s note for that amount, witli interest at six pér cent, the plaintiff agreed to transfer to the defendants his interests in four certain' sailing vessels in trust, to hold and manage the same until

p. 421

the loan and any advances on account of the vessels should be repaid. The agreement also provided that the defendants should be allowed to charge in each vessel’s account one-third of five per cent commission on all charters secured, and to charge interest at six per cent on all moneys advanced for disbursements or otherwise, and also two and one-half per cent commission on all moneys advanced, including the $10,000 loan. The parties thereafter entered upon the performance of the agreement, and in January, 1906, the plaintiff brought this action to have the agreement and the note and transfer of the vessels made pursuant thereto canceled as usurious and void, and to compel the defendants to retransfer the vessels to him and to account for the moneys received during their management of them. '

The defendants in their answer admitted all of the material allegations of the complaint, but denied that the agreement was usurious. The answer also contained certain affirmative allegations obviously intended as a defense, though not so designated. The facts alleged in the answer, so far as material, were in substance that in June, 1902, one Kent'had recovered a judgment against the plaintiff for about $1,086.59 in the City Court of the city of New York; that in July, 1903, in proceedings supplementary to execution upon the said judgment one Deignan was by order of one of the justices of said court appointed receiver of plaintiff’s property; that in December, 1904, Deignan was by order of the court directed to sell all plaintiff’s right, title and interest in and to the four vessels in question, and that in January, 1905, he sold the same to one Bid-dell, to whom Kent had assigned the judgment; that in May, 1905, Biddell assigned all her interest in the- vessels to one Fleelcenstein, who, in November, 1905, released the defendants from all claims on account of said vessels.

Upon the trial both parties moved for judgment upon the pleadings. These motions were denied and the defendants then submitted documentary evidence in support of the defense alleged, to which the plaintiff testified in rebuttal. The court held that no defense had been established and the interlocutory judgment from which this appeal is taken was entered accordingly. This judgment adjudges the agreement between the parties usurious and void and directs the cancellation of the same, together with the plaintiff’s

p. 422

note for $10,000, and conveyance of his interest in the vessels ; it also directs the defendants to reconvey the interest to the plaintiff and to account for all moneys received on account of said vessels, appointing a referee to take the account and providing for the entry of final judgment in plaintiff’s favor upon the confirmation of the referee’s report.

The agreement was, upon its face, usurious and void. The defendants did not offer any evidence to explain or justify the charges in excess of the lawful rate of interest and it, therefore, follows that so far as the judgment declares the agreement and the instruments given pursuant thereto to be void, it must necessarily be affirmed. The defense alleged related solely to the defendants’ title to the vessels and consequently was at most a partial defense to the action.

But neither the pleading nor the proof submitted was sufficient to establish title to the vessels in the defendants. Their claim ■ through the sale by the receiver is based primarily upon the judgment obtained against the plaintiff in the City Court. That court, although a court of record, is a local statutory court of inferior jurisdiction, and the facts necessary to its jurisdiction will not be presumed, but must be made to appear affirmatively. (Frees v. Blyth, 99 App. Div. 541 and cases cited ; Pendleton v. Friedman, 135 id. 420; Hamerschlag v. Cathoscope Elec. Co., 16 id. 185.) The answer did not allege the facts showing that the City Court had jurisdiction to render the judgment nor did it allege, as permitted by section 532 of the Code of Civil Procedure, that the judgment was “ duly ” rendered. The proof offered was equally deficient, consisting solely of a certified copy of a transcript of the judgment. There being no presumption that the court had jurisdiction, it was incumbent upon the defendants to prove affirmatively that it did have jurisdiction, and the transcript of the judgment alone'was not proof of that fact.

B ot only this, but it did not appear that the receiver ever acquired any interest in the vessels or that any interest passed to the purchaser upon the alleged sale. The receiver before entering upon his duties was hound to execute and file his bond (Code Civ. Proc. § 715) and he was directed to do so by the order appointing him, which further provided that the receiver “ upon filing said bond, and

p. 423

upon filing and recording the said order in the office of the Clerk of this Court and of the Counties of New York and Kings, be invested with all the rights and powers as Receiver according to law.” The bond which he filed, as appears from the certified copy in evidence, was' not executed by him and had never been approved. Neither was there any proof that a certified copy of the order appointing him had been filed in Kings county as directed by the order. The judgment debtor (the plaintiff) was then a resident of Kings county, and the receiver did not become vested with the title to or interest in his personal property until that had been done. (Code Civ. Proc. § 2468, snbd. 2.)

The order directing the sale of plaintiff’s interest in the vessels instructed the receiver to sell the same, “ giving to the purchaser on said sale the same right which the said receiver possesses to the said property.” Inasmuch as it affirmatively appears from the evidence introduced by the defendants that the receiver had never qualified as such, it is quite apparent that he was never in a position to make a valid sale of plaintiff’s interest and that the purchaser upon the alleged sale obtained no title.

It would also seem that the alleged sale was irregular. The order did not specify how it should be made, but it did recite that the property to be sold was of nominal value only and the receiver was bound to sell the same at public auction on notice. (See General Rules of Practice, rule 77.) ■ No proof was offered as to the manner in which the sale was actually made, but from the bill of sale executed by the receiver it may fairly be concluded that the sale was a private one to the person then holding the judgment against the plaintiff. But how this would affect the case at bar, as well as a number of other objections raised by the respondent, need not be considered. For the reasons already discussed, the'defendants failed utterly to establish the defense alleged- or to show that the plaintiff had been divested of his interest in the vessels and it is unnecessary to pass upon any of the other objections urged.

In one respect, however, the judgment appealed from is erroneous. It directs the defendants to account for all the moneys received on account of the vessels and to pay all such sums to the plaintiff. It may reasonably be assumed that the defendants have incurred certain expenses in the management of the vessels and

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they.should, obviously, be allowed credit for such amounts as were reasonably and necessarily expended in connection therewith. The judgment should, therefore, be modified by providing that from the moneys which the defendants have received from the care and management of the vessels there be deducted the amount of the reasonable and necessary disbursements, and that if the same is more than the amount received, they trarisfer the vessels to the plaintiff upon his paying the difference. As thus -modified, the interlocutory judgment appealed from is affirmed, without costs to either party.

Ingraham, P. J., Laughlin, Miller and Dowling, JJ., concurred.

Judgment, modified as directed in opinion, and as modified affirmed, without costs.- Settle order on notice."

Cases cited

Frees v. Blyth 99 App. Div. 541 N.Y. App. Div. 1904-12-15 p. 422