Fielding v. Lucas — 60 How. Pr. 134

Majority

p. 134

SUPREME COURT.

Robert W. Fielding agt. John Lucas et al.

Headnote

Demurrer — Bill in equity to dissolve partnership and to adjudge void certain attachments issued by creditor's of the firm is denrnrrdble by said creditors.

A bill in equity to dissolve a partnership and to adjudge void certain attachments issued by creditors of the firm, is demurrable by said creditors. As to such creditors the remedy at law against their enforcing said attachments is adequate. The parties can release the attached property by a bond. They can move to vacate the attachments. They can defend on the ground that the court issuing the attachments has no jurisdiction. If such creditors sue in the wrong court, it is not the province of a court of equity to bring them in as parties to answer an allegation to that effect and to have their suit arrested.

Second Department, September, 1880.

The plaintiff filed a bill in equity alleging that on June 10, 1874, the plaintiff and the defendant John F. Walter, Jr., entered into an agreement in writing whereby they became copartners for three years from July 1, 1874, and that they have ever since continued their partnership under the firm name of Walter & Fielding. (2.) That the copartnership has been, since September, 1879, insolvent. (3.) That John F. Walter, Jr., one of the copartners, is indebted to the firm in $5,047.64. (4.) That the said John F. Walter, Jr., and the' other defendants acting by collusion with him, for the purpose of taking an undue advantage of the firm, and of giving a preference to the defendants Kate E. Walter and Alphonses H. Walter, who are sister and brother to the said John F.

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Walter, Jr., and to the remaining defendant John Lucas, over all the other creditors of the copartnership, caused three actions to be commenced in the marine court of the city of New York, one at the suit of said Kate E. Walter, one at the suit of the said Alphonsos H. Walter and another at the suit of the said John Lucas, all against the plaintiff and the said John F. Walter, Jr., by summons returnable six days after service thereof, and have caused a warrant of attachment to be issued in each of said actions against the defendants therein (this plaintiff and the said John F. Walter, Jr.), on the ground that they were non-residents of the city of New York and resided in Kings county, and upon no other ground. (5.) That the said actions were upon contract and the amount demanded in each exceeded $1,000. (6.) That the plaintiff and the said John F. Walter had at all such times a place of business in the city of New York, and that said attachments were void for want of jurisdiction in said marine court to issue the same. (7.) That said firm owe creditors oyer $15,000. (8.) That under said attachments the sheriff of the city and county of New York had seized all of the firm’s property, and that if permitted to sell the same said property will be sacrificed and the other creditors will receive nothing. Wherefore the plaintiff prayed: (1.) That said copartnership be dissolved and an accounting had. (2.) That a receiver be appointed to marshal said assets. (3.) That said warrants of attachment be adjudged void. (4.) That said attaching creditors be enjoined in the meantime from enforcing said attachments.

The defendant Lucas, one of the attaching creditors, demurred to this complaint upon the ground that it contained no cause of action 'against him.

The demurrer was overruled at special term and judgment for the plaintiff ordered thereon by Gilbert, J., and the said defendant appealed.

Devoid "Crcvwford, for appellant,

contended that his client was not a proper party to a suit for a copartnership account

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ing, as he was not a member of the firm; that he was evidently made a party to enable the plaintiff to do indirectly what he could not do directly, i. <?., to have this court assume the control of process issuing out of another court of record in an action therein pending, and of which action it was conceded such other court had jurisdiction of the subject-matter of the action and of the parties. (2.) That the marine court had power to issue the attachments, and he referred to the opinion of McAdam, J., in Nugent agt. Garvey (affirmed in 11 Hun, 433 , and the cases there cited).

J. A. Shoudy,

contended that the attachments were void under the statute, as the defendants had a place of business within the city of New York, and the amounts claimed exceeded $1,000 in each case, and being void it must be so declared whenever the question is raised, citing Miller agt. Brinckerhoff ( 1 Denio, 118 ); Staples agt. Fairchild ( 3 N. Y., 41 ). (2.) That a court of equity certainly had power to dissolve a copartnership and to marshal the firm’s assets, and in doing so would not permit itself to be impeded by void attachments at the suit of creditors.

The complaint states no legal cause of action against the defendant Lucas; he is a creditor of the firm of Walter & Fielding.

He lives in Brooklyn and commenced an action against the parties in the marine court of the city of New York to recover his debt. The partnership had an office or place of business in the city of New York. The attachment was granted against the property of the firm by the judge of the marine court, based upon an affidavit of the non-residence of the parties. The partnership goods were seized under the attachment of Lucas and others. One of the partners commences an action against his copartner to settle the partnership affairs, to terminate the partnership, and Luca's is made a party defendant and relief is asked against him, that the

p. 137

attachment be decreed to be void, and that he prove his claim in this action, and in the meantime, pending the action, that he be enjoined from enforcing his attachment, and that a receiver be appointed.

As to Lacas and other attaching creditors, the remedy at law against their enforcing a void attachment is adequate. The parties can release the attached property by a bond. They can move to vacate the attachment. They can defend upon the ground that the marine court has no jurisdiction of the action. If Lucas has sued in the wrong court, it is not the province of a court of equity to bring him in as a party to answer an allegation to that effect and to have his suit arrested.

It is no aid to the complaint to aver that Lucas had bad . motives in enforcing his claims in the marine- court.

If he has a good debt, and proves it in a competent court, no question will be made whether his design was to harass the parties, or one of them, or to get an advantage over other creditors.

The judgment should be reversed, with .costs to defendant Lucas.

Dykmxn, J., concurred; Gilbert, J., not sitting.