Barker v. Archer — 49 A.D. 80

Majority

p. 80

Frank C. Barker, Respondent, v. Theodore F. Archer, Appellant.

Headnote

Venue in the Municipal Court of New York city — objection to, cannot be first taken on appeal—proceeds of the sale, by an auctioneer, of goods already sold by his principal.— disposition thereof after service upon him of a restraining order in supplementary proceedings against the vendor.

The practice, where the venue of an action in the Municipal Court of the city of New York is not laid in the proper district, is regulated by subdivision 4 of section 1370 of the Greater New York charter (Laws of 1897, chap. 378), and an objection to the venue cannot be raised for the first time upon appeal. "Where a person (who has placed certain property in the hands of an auctioneer for sale) sells such property to a person who reduces the goods to possession before the sale, the service upon the auctioneer of a third party order made in supplementary proceedings instituted against the vendor, restraining the auctioneer from parting with the proceeds of the sale of the goods, docs not furnish a legal excuse for the auctioneer’s refusal to pay the proceeds to the vendee where the latter was a bona fide owner of the property.

Appeal by the defendant, Theodore F. Archer, from a judgment of the Municipal Court of the city of Hew York, borough( of Brooklyn, second district, in favor of the plaintiff, entered in said court on the 28th day of April, 1899, upon the verdict of a jury.

The action was brought to recover from the defendant, an auctioneer, the proceeds of the sale of certain goods which the plaintiff claimed had been sold to him by their original owner, who had placed them in the custody of the defendant.

Weller & Gillen, for the appellant.

Frank C. Barker, for the respondent.

This court has held, upon the authority of Irwin v. Metropolitan Street R. Co. ( 38 App. Div. 253 ), that the Legislature had the power to create the Municipal Court with jurisdiction extending

p. 81

over the entire city of New York (Kantro v. Armstrong, 44 App. Div. 506 ), and as subdivision 4 of section 1370 of the Greater Hew York charter (Laws of 1897, chap. 378) .regulates the proceeding where the action is not brought in the proper district, and it is conceded the defendant raised no objection to the venue, we are of opinion that the question cannot be raised upon this appeal. The defendant must be deemed to have waived his right in respect to the district in which the action should be tried, by not availing himself of the provisions of the statute.

Upon the merits of the case we are satisfied that the plaintiff fully sustained all of the propositions necessary to constitute a good •cause of action; that the questions were properly submitted to the jury, and that the verdict is in accord with the evidence and in harmony with the law. It was established that the goods which were placed in the custody of the defendant for storage and sale were sold to the plaintiff by the original owner of the property for a good and sufficient consideration, and that they were actually reduced to possession before the sale. A third party order made in supplementary proceedings instituted against the plaintiff’s vendor and served upon the defendant, an auctioneer, restraining him from parting with the proceeds of the sale of goods supposed to belong to plaintiff’s vendor, did not furnish a legal excuse for retaining the money of the plaintiff, who was the Iona fide owner of the property sold. We find no evidence in the case that the transaction between the plaintiff and his vendor was not in good faith; at most there was an effort on the part of the plaintiff’s vendor to pay his attorney for services rendered, rather than the party who had procured a judgment against him, and we know of no law which prevents the owner ■of property from electing which of two creditors he will pay out of ■a limited fund at his disposal. It was not error for the court to charge that there was no evidence that this transaction was not Iona fide as between plaintiff and his vendor, and we are of opinion that the judgment appealed from should be affirmed, with costs.

Judgment appealed from affirmed, with costs.

All concurred.

.Judgment of the Municipal Court affirmed, with costs.

Cases cited

Irwin v. Metropolitan Street Railway Co. 38 App. Div. 253 N.Y. App. Div. 1899-03-24 p. 80