Rockwell v. Merwin — 31 N.Y. Super. Ct. 484

Majority

p. 484

CHARLES ROCKWELL, as Receiver of JAMES E. FARRELL, Plaintiff and Respondent, v. JOHN G. MERWIN, Defendant and Appellant.

Headnote

A receiver of the property of a judgment debtor, regularly appointed as snch, unless restricted by special order of the court, possesses general power to sue for and collect the debts due to the judgment debtor in any court having jurisdiction over the subject-matter of the action. Upon the trial of such action it is not necessary for him to show affirmatively that the order of his appointment has been actually recorded.

A private account kept between the judgment debtor and defendant in one of the books of the defendant, and containing, with one exception, all the debit and credit items between the parties, to which defendant had never objected, is admissible in evidence in an action brought by the receiver for the purpose of showing the state of indebtedness between the judgment debtor and defendant.

Where, upon a trial before a referee, a portion only of the accounts existing between the parties is put in evidence in support of a counterclaim for a wrongful conversion of funds, which is denied by the plaintiff, and there is other evidence tending to show that the truth could be readily ascertained by a production of all the accounts, and that they are in the possession of the defendant, the referee, upon defendant’s failure to produce them, will be held justified in finding that the counterclaim was not proven.

Before Monell, Jones, and Freedman, JJ.

[Decided July 2, 1869.]

This case was tried before a referee. The action was brought by the plaintiff as receiver, &c., of Janies E. Farrell to recover against the defendant the sum of $625 for work, labor, and services as superintendent of the Milford Hotel. Upon the trial the plaintiff moved to amend his complaint so as to aver that the plaintiff was “duly” appointed receiver, &c. The referee granted the motion, and defendant excepted. Defendant’s counsel objected to the admission in evidence of the order appointing the plaintiff receiver, on the ground that it was never recorded, as required by statute, in the office of the Clerk of the City and County of New York. The referee admitted the game in evidence, and the defendant excepted. The referee allowed in evidence Farrell’s account of the receipts and expenses

p. 485

of the hotel as kept by him, to which ruling the defendant excepted.

The referee found in favor of the plaintiff, and defendant appealed to the General Term. The facts of the case fully appear in the opinion of the Court.

Mr. Elbridge T. Gerry for appellant.

There is no allegation of any recording of the order of appointment of the receiver, and the objection is not cured by the allegation that he was, by an order duly made, duly appointed, for the reason that the registration can alone give vitality to the order, and takes place after the order is duly made (Code, sec. 298).

These objections were not cured by answer, for the reason that the Code expressly exempts them from waiver (Code, sec. 148 ; Delafield v. Wright, 3 Sandf. R., 746).

The only evidence to sustain thé complaint was Farrell’s statements made from the boo7cs; all of which were not then produced. So that the referee was not warranted in finding for the plaintiff, if no evidence had been produced by the defence, because the whole accounts were not before him.

The referee erred in allowing the amendment to the complaint ; also in admitting Farrell’s book of accounts in evidence; also in not dismissing the complaint; and also in not allowing defendant’s counterclaim.

Mr. Abner C. Thomas for respondent.

Before the Code, all that it was necessary for a receiver to aver was, that on a certain day, at a certain place, by a certain court, he was appointed a receiver. The complaint contains all of these allegations (Gillett v. Fairchild, 4 Denio, 82 ).

The motion to strike out the witness Farrell’s accounts was frivolous. In so far as it concerned the transactions had between Farrell and the defendant, with- regard to Farrell’s earnings, it was

p. 486

entire and unmutilated. It had been stated between Farrell and the defendant, and its correctness had been repeatedly admitted by part payments of the amount shown to be due.

It is not denied that Farrell performed the services alleged in the complaint, and, unless he was guilty of a fraud, it is conceded that he was never paid for said services. That being the case, the¡presumption of honesty arises in favor of Farrell, and the burden ofproof is thrown upon the defendant.

Although the bill of particulars contains a long list of claims given with apparent accuracy, not one single item in it is to be found in either of the books which are in evidence. The conclusion is irresistible that the defendant had control of the books in which such entries were made, and designedly secreted them.

It is not claimed that all the books of the hotel were produced on the trial.

By the Court:

The complaint, as amended, is sufficient, and the amendment was a matter of discretion for the referee. His decision upon this point, haying been made in the exercise of proper discretion, will not be interfered with. In the absence of evidence to the contrary, the jurisdiction of this court in the case under consideration will be presumed.

The evidence adduced before the referee was sufficient to authorize him to find that the plaintiff was duly appointed receiver, and that the provisions of section 298 of the Code, relative to the filing and recording of the order of appointment, were sufficiently complied with to enable the plaintiff to maintain the action.

Having been regularly appointed receiver of the property and effects of the judgment debtor, lames E. Farrell, and not being restricted by special order of the court, the plaintiff possessed a general power to sue for and collect the debts, demands, &c., &c., of such judgment debtor, in any court possessing otherwise jrn-isdiction over the subject-matter of the action, and therefore had an undoubted right to come into this court.

p. 487

Nor can I discover that the referee erred in admitting in evidence the private account kept by James E. Farrell between himself and the defendant. It was kept in one of the books of the defendant, to which the latter always had access, and which, on Farrell’s departure from the hotel, were all turned over to defendant’s father; it contained, with one exception, all the debit and credit items between the parties, which are now conceded to have been made on the days of the dates of the entries, as the transactions occurred; and it was shown that the last statement of the said account was made to the defendant about one month before Farrell left; that the statement was made from this book, and agreed with the entries, and that the defendant never objected to it. It was, therefore, competent evidence, tending to show the true state of indebtedness between Farrell and the defendant; and I cannot perceive for what reason the plaintiff should have been required to produce other books and accounts, which had nothing to do with establishing plaintiff’s cause of action. Upon the whole evidence, I think it is clear that the plaintiff sufficiently proved the cause of action set forth in his complaint, and the referee was right in refusing to entertain defendant’s motion for a dismissal of the complaint, upon the ground that there is no legal evidence to sustain the allegations.

These remarks dispose of all the points raised upon this appeal, with the exception of such as relate to the counterclaim interposed by the defendant in this action. The defendant claims that during the time Farrell had charge of the hotel, he had control of the receipts and disbursements of the same; that the receipts largely exceeded the disbursements ; that Farrell must have appropriated a large portion of the receipts to his own use and benefit, amounting to about $12,000, for which sum the appellant claims the referee should have awarded judgment to him. To establish this counterclaim, the defendant, on the trial, produced only a portion of the books and accounts kept by Farrell, although he admitted that there were others, for the non-production of which he failed to give any reason; arid although required by notice, served previous to the trial, to produce all

p. 488

books and accounts, he wholly failed to produce the.journal, which, according to Farrell’s testimony, contained a perfect record and chain of all his transactions.

The defendant seems to rely principally, first, upon the fact-that the partial accounts which he did produce do neither balance nor show any entries of the daily receipts of the bar, which several years prior thereto, and while the hotel was in the-hands of another proprietor, averaged $535 per month during the regular boarding season, and for, which the defendant claims to recover at that rate for several years, without making any allowance or reduction for any falling off during the dull season; arid, second, upon a statement alleged to have been made by Farrell, which, however, is denied by the latter, to the effect that at the end of the boarding season of 1867, he, Farrell, expected to be able to pay off all the debts of the hotel, but that, notwithstanding this representation, the debts of the hotel in October, 1867, amounted to about $3,000. This evidence is clearly insufficient to establish the serious charge made by the defendant against Farrell. It appears, however, further, that the partial accounts 6> produced by the defendant are also defective in not containing any items for moneys paid out by Farrell in defraying the running expenses of the hotel, that Farrell had the right to use the receipts for the purchase of goods for the use of the hotel, and that no other funds were ever furnished to him for that purpose, and that defendant’s father-in-law and the family of the latter were supported by Farrell out of the proceeds of the hotel during the whole period of Farrell’s employment, without-Farrell receiving any pay or - service therefor. According to defendant’s own testimony, he sat down with Farrell every Sunday, talked the receipts of the hotel over with him, and the books were there. Farrell testified that when he left the hotel he left all the books there, and that these books, if produced in full, will give a correct statement of what was done with all the moneys received by him while in charge of the hotel; that the defendant had never accused him of being dishonest, and had never claimed to have any demand against him until he, the

Concurrence

p. 489

defendant, interposed his answer in this action; but that, on the contrary, the defendant, at a meeting of the creditors of the hotel held in October, 1867, admitted Farrell’s claim to be just and unpaid, and upon this point Farrell is fully corroborated by two disinterested witnesses. Under these circumstances, the referee was fully justified in finding that the defendant’s allegations to the effect that the receipts of the hotel exceeded the disbursements, and that Farrell appropriated to his own use any sum whatever belonging to the defendant, had not been proven. The referee also found that Farrell received the sums -of money charged in the defendant’s bill of particulars, and that said sums of money were paid out by him in the business of the defendant and for defendant’s benefit. Ho exception has been taken to this finding, and it is therefore unnecessary to inquire into the sufficiency of the evidence adduced in support of it.

In my opinion, no error has been committed by the referee upon the trial of this action, and the judgment appealed from should be affirmed, with costs.

(concurring). I concur in affirming the judgment, but do not concur in the opinion that it was not error in overruling the objection to the sufficiency of the evidence of the plaintiff’s appointment as receiver. The appointment was controverted by the defendant, and as the rcording .of the order of appointment was necessary to vest the receiver with the right of action against the defendant, it was incumbent on him to show such recording, not for the purpose of establishing his legal capacity to sue, but to show the transfer to him of the cause of action, inasmuch as the receiver is vested with the property and effects of the judgment debtor from the time of the filing and recording of the order.

But as proof was furnished, on the argument of the appeal, of the due filing and recording of the order, the error at the trial is cured. Such proof was admissible (Bank of Charleston v. Emerie, 2 Sandf., 718 ).

The respondent should not have costs of the appeal.