Albany Brewing Co. v. Barckley

Headnote

Coun ty Court — a judgment establishing an equitable claim upon a' liquor tax certificate cannot be rendered by it.

After the-holder of a liquor tax certificate had assigned the same as security for an indebtedness, a receiver of his property was appointed in proceedings supplementary to execution. The receiver, finding the liquor tax certificate in the' possession of the licensee, surrendered it to the county treasurer and received a statement of the amount of the rebate due thereon. The assignee of the certificate thereupon brought an action against the county treasurer in the County

Court for the conversion of the certificate, and, upon motion of the assignee, the receiver was made a party defendant.

Upon the trial the court dismissed the complaint as against the county treasurer and rendered a judgment in favor of the plaintiff against the receiver, adjudging “that the plaintiff has an equitable claim upon the certificate in question and any rebate thereon, and that such receiver took such certificate subject to such claim.”

Held, that the County Court had no jurisdiction to grant such a judgment and that such jurisdiction could not be conferred by consent of the receiver.

Appeal by the defendant, A. Page Smith, as receiver, etc., of Joseph Seeney, from a judgment of the County Court of Albany county in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 18th day of June, 1901, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 21st day of June, 1901, denying the defendant’s motion for a new trial made upon the minutes.

In April, 1897, a liquor tax certificate was issued to one Joseph Seeney, who thereupon assigned the same to this plaintiff as security for an indebtedness. Upon October 27, 1897, the defendant Smith was appointed, receiver of the property of Seeney in proceedings supplementary to execution. This liquor tax certificate, having been found in the possession of Seeney, was, upon the first day of November following, surrendered to defendant Barckley, as .treasurer of Albany county, together with a petition in due form for its cancellation and the payment to him of the proper rebate. The treasurer thereupon gave to the receiver a receipt for the certificate and a statement of the amount of rebate and by whom payable, and sent to the State Commissioner of Excise, as he was by law required to do, a duplicate of the receipt, together with the certificate and petition for cancellation. Thereupon this action was brought against the said Barckley, as treasurer of Albany county, for a conversion of this certificate. Upon motion of the plaintiff the defendant Smith was thereafter made a party defendant, upon the allegation that he claimed to have some interest in the certificate, which interest, if any, arose subsequent to the plaintiff’s interest. The action was brought to trial and the plaintiff recovered a judgment for conversion against the said Barckley, which judgment was by this court reversed and a new trial ordered. (See 42 App. Div. 335 .) Upon

the new trial, upon motion of plaintiff, the complaint was dismissed against the defendant Barcldey, and, against the defendant Smith’s objection, the jury were directed to render a verdict that, under the facts in this case and as between the plaintiff and defendant, the receiver, “ the plaintiff has an equitable claim upon the certificate in question and any rebate thereon, and that the receiver took such certificate subject to such claim.” Thereupon a judgment was entered adjudging that the plaintiff have judgment, without costs, against the defendant Smith, as receiver, etc. “ That the plaintiff has an equitable claim upon the certificate in question and any rebate thereon, and that such receiver took such certificate subject to such claim.” Erom this judgment the defendant Smith, as receiver, has appealed .to this court.