Sgobel v. Cappadonia — 40 N.Y.S. 946

Majority

p. 946

(8 App. Div. 303)

SGOBEL et al. v. CAPPADONIA et al.

(Supreme Court, Appellate Division, First Department.

July 31, 1896.)

Headnote

Liens—Creation—Payment op Customs Duties.

Where plaintiffs advanced money to pay the customs duties on goods imported by defendants, the advances being made under an agreement that plaintiffs should have a lien on the goods for the money so advanced, they are entitled by subrogation to the lien of the government for the duties.

Appeal from special term, New York county.

Action by Frank Sgobel and Horace W. Day against Filippo Cappadonia and the E. L. Goodsell Company, Limited. From an order continuing an injunction restraining defendants from disposing of •certain boxes of lemons consigned to defendant Cappadonia in any other manner than by selling the same at auction, and from paying over either to defendant Cappadonia or to the owner of the lemons so much of the proceeds of the sale as will be sufficient to satisfy plaintiffs’ claim of $250, defendants appeal. Affirmed.

Argued before BARRETT, RUMSEY, PATTERSON, and INGRAHAM, JJ.

Dallas Flannagan, for appellants.

George A. Black, for respondents.

The plaintiffs having advanced to the defendant Cappadonia the money necessary to pay the duties upon the lemons under an agreement that they should have a lien upon such lemons for the amount so advanced, and the defendant Cappadonia having used the money borrowed from the plaintiffs for the payment of such duties, we think that the lien of the government upon the lemons for duties passed to the plaintiffs by subrogation; so that the plaintiffs became vested with the lien of the government for such duties, and would be entitled to enforce such lien in this action. The shippers of the lemons have no claim against these plaintiffs, and have no right to offset as against them the claim against the defendant Cappadonia so as to destroy the plaintiffs’ lien. The shippers of the goods make no claim here to the proceeds of the sale, and it would be unjust to allow the proceeds of the sale to be paid to the defendant Cappadonia to enable him to defraud the plaintiffs by repudiation of, his agreement with them that the goods themselves should be disposed of, and the amount that plaintiffs advanced repaid out of the sale of the goods.

The order should therefore be affirmed, with $10 costs and disbursements.