Pope v. Cole — 64 Barb. 406

Majority

p. 398

Charles C. Pope and others vs. Ann J. Cole, executrix &c.

Headnote

In an action against the executrix of a deceased partner of the firm of D. & 0., by creditors of the film, to recover a partnership debt, the complaint alleged that the defendant’s testator and D. were formerly partners in business, and as such became indebted to the plaintiffs in the sum of $502.26, for goods sold, &b. ; that 0. afterwards died; that the plaintiff has sued D., the surviving partner, for such debt, and had recovered a judgment for $531.50; and that an execution had been issued thereon, and returned unsatisfied. Held that the complaint stated a clear cause of action, in equity, against the defendant, as executrix of the deceased partner. That it showed that the plaintiffs had exhausted their remedy at law, as against D., the surviving partner, and this was all that was -required.

Most of the cases state the rule less strictly, and hold that it is sufficient to aver and prove that the surviving partner is insolvent. Per E. D. Siam, J.

The recovery of a judgment, with the issuing and return of an execution unsatisfied thereon, exhausts the legal remedies of the plaintiff, on the judgment, for the collection of his debt against the judgment debtor. Nothing remains to be performed, with the ordinary machinery of the courts.

After partnership creditors have exhausted their legal remedy for the collection of their debt against the surviving partner, this is sufficient to authorize them to recover the same from the estate of the deceased partner, in an" equitable action against his executrix.

Proceedings supplementary to execution, as authorized by the Code, are not strictly legal, but equitable, proceedings. They are a substitute for the creditors’ hill of the courts of equity, which may still be used to reach the equitable property of the judgment debtor. Per E. D. Smith, J.

APPEAL from a judgment rendered at a Special Term, on a trial before Justice Morgan, without a jury.

On the 20th day of November, 1869, the plaintiff recovered judgment for $534.50 against Gfeorge Draper, as surviving partner of the late firm of Cole & Draper, Lewis K. Cole, one of said firm, having died. Execution was issued upon said judgment, and returned unsatisfied. Lewis K. Cole died in the spring of 1869, leaving a will, in and by which the defendant was created sole executrix. The will was duly proved, and letters testamentary issued to the defendant, prior to the ''commencement of this suit. After the return of execution

p. 399

unsatisfied against Draper, the plaintiffs commenced this action against the defendant, alleging the above facts. At the trial the plaintiff proved the facts alleged in the complaint. The defendant, immediately after the opening by the plaintiffs’ counsel, moved to dismiss the action upon the ground that the complaint failed to state facts sufficient to constitute a cause of action, in this: that it omitted to allege the insolvency of the surviving member of the late firm of Cole & Draper. The court refused to grant said motion, and the defendant excepted. For a second answer the defendant averred that Draper, the surviving member of Cole & Draper, was solvent, -and seised of property out of which said judgment could be collected. For a third answer the defendant averred that the execution was returned unsatisfied, through collusion between the plaintiffs and Draper. The plaintiffs requested the court to rule and decide that the facts alleged in the second count of the answer constituted no defence. The court so ruled and decided, and the defendant duly excepted. The defendant attempted to show collusion in the return of the execution. At the close of the evidence the defendant again claimed that the proof established the fact that Draper had property out of which the execution could have been collected, and that this fact constituted a good defence. The court held that this constituted no defence, in the absence of proof of collusion, and that the return of the sheriff was sufficient. To this ruling the defendant excepted.

The court found, in its decision, as filed, the facts stated in the complaint, and ordered payment in favor of the plaintiffs. The defendant excepted to the finding of law, and appealed from the judgment.

J. D. Garfield, for the appellant.

R. Raynor, for the respondent.

This case was correctly disposed of at the Special Term. The complaint, which was read on the trial, states that the defendant’s testator, L. K. Cole, deceased, and one Geo. Draper, were formerly partners in business, and as such became indebted to the plaintiff in the sum of $502.26, for goods sold, &c.; that Cole afterwards died; that the plaintiff had sued Draper, the surviving partner, for such debt, and duly recovered a judgment for $534.50, damages and costs; and that an execution in due form of law had been issued on such judgment, to the proper sheriff, which had been duly returned unsatisfied. The defendant’s counsel objected, at the trial, that no cause of action was stated in the complaint, and moved that it be dismissed, for that reason; which motion was denied by the circuit judge, and the defendant’s counsel duly excepted. This exception presents the only real point of controversy in the action. This exception, and this point, are clearly not well taken. The complaint states a clear cause of action in equity against the executrix of the deceased partner of the firm of Draper & Cole. It shows that the plaintiff had exhausted his remedy at law as against the surviving partner. This is all that is required, in any of the cases. Indeed most of the cases state the rule less strictly, and hold that it is sufficient to aver and prove that the surviving partner is insolvent. In Voorhis v. Childs’ Executor, ( 17 N. Y. 357 ,) Judge Selden states the rule to be, that in such action “it is indispensable to aver either that the survivors have been prosecuted to execution at law, or that they are without the means of payment. ’ ’ The averment in the complaint in this action is, in force and effect, that the plaintiff had exhausted his remedy at law. The recovery of judgment with the issuing and return of an execution unsatisfied thereupon did, and does, exhaust the legal remedies of the plaintiffs on the judgment for the collection of their debt against the judgment debtor. Nothing

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remains to be performed with the ordinary machinery of the courts. Proceedings supplementary to execution, as authorized by the Code, are not strictly legal, but equitable, proceedings. They are a substitute for the creditors’ bill of the courts of equity, which may still be used to reach the equitable property of thé judgment debtor. The plaintiff had strictly exhausted his legal remedy for the collection of his debt against the surviving partner; and this was sufficient to entitle him to recover the same from the estate of the deceased partner. He had made conclusive proof of the insolvency of the surviving partner; for the return of an execution unsatisfied, in such cases, is conclusive evidence of insolvency. The defendant was allowed to show fraud and collusion between the sheriff and the plaintiffs, in which he entirely failed. The plaintiffs’ right of recovery is fully sustained in principle by the cases of Voorhis v. Childs’ Ex'r, (supra;) Tracy v. Suydam, (30 Bart. 115;) Orphan House v. Lawrence, (11 Paige, 80; 2 Denio, 577 ;) Richter v. Poppenhausen, ( 42 N. Y. 376 .)

[Fourth Department, General Term, at Rochester,

September 10, 1872.

Mullin, Talcott and E. D. Smith, Justices.]

The judgment should be affirmed, with costs.