Fielding v. Lucas

Headnote

Attachment against firm property — when the attaching creditor is not a proper party to an actionfor a dissolution of ihefirm.

‘The complaint in this action alleged that the plaintiff and the defendant Walter were copartners, and that the firm had become insolvent; that the .other defendants had, by collusion with the defendant Walter, commenced .actions against the firm in the Marine Court of the City of New York, in ■which attachments had been issued, under which property of the firm had «been seized; that such attachments were void, for the reason that the firm .¿had a place of business in the city of New York, though both of the .members thereof resided in Kings county. The relief sought was the dis.-.solution. of the firm, the appointing of a receiver, the vacating of the attachment, and also that the said defendants might be restrained from further prosecuting their actions in the Marine Court.

Meld, that as to the attaching creditor, the complaint did not state facts sufficient to constitute a cause of action, and that it should be dismissed.

Appeal by the defendant Lucas, from a judgment entered upon an order overruling a demurrer to the complaint.

The complaint alleged, among other things, that tbe plaintiff and tbe defendant, Jobn F. Walter, Jr., were copartners by tbe firm-name of Walter & Fielding, under an agreement by which tbe period of its continuance was not determined ; that tbe copartnership bad become insolvent; that by collusion with tbe defendant, John F. Waiter, Jr., tbe other defendants bad commenced actions against tbe firm in tbe Marine Court of tbe city of New York; •.that warrants of attachment bad been issued in tbe said actions by justices of tbe Marine Court, one of them at tbe suit of the defendant, Incas, in an action on contract for tbe payment of money only; •that tbe action was commenced by tbe issuing of a summons returnable in six days, and that tbe warrant was issued upon tbe sole ground -that tbe members of tbe said firm of Walter & Fielding were not .■residents of tbe city and county of New York; that, in fact, both ■members thereof were residents of tbe county of Kings, and bad ibeir office and place of business in tbe city and county of New York at' tbe time said warrant was issued. Tbe complaint further

¡alleged that the sheriff had taken possession of the property of the ■firm under the said attachment, and that the said property would be sacrificed, to the great injury of the creditors of the firm, unless the .attachment was vacated. That the said justices of the Marine ■Court had no jurisdiction to issue a warrant of attachment against the said firm as non-residents, so long as the members thereof were residents of the State of New York, and had their office and place ■of business in the city of New York.

The relief asked for was the dissolution of the copartnership, the appointment of a receiver of its property pendente lite, and ■finally, the distribution of the assets of the firm, and that the said ■warrant of attachment be declared void, and the firm property be released therefrom, and that the defendants be restrained from prosecuting the said actions in the Marine Court, and be required to. prove their claims in this action; and for other and general relief.

The defendant, Lucas, demurred on the ground that the complaint does not state facts sufficient to constitute a cause of action.