Chittenden v. Davidson — 52 N.Y. Super. Ct. 421

Majority

p. 421

HORACE H. CHITTENDEN, as Assignee, &c., Appellant, v. ALEXANDER V. DAVIDSON, as Sheriff, &c., et al., Respondents.

Headnote

Equity—Assignee for "benefit of creditors—when not entitled to restrain proceedings under execution, Sc., against assigned property.

An equitable action by an assignee for the benefit of creditors, to restrain the sheriff and judgment creditor from taking any proceedings under a judgment obtained in another court and the execution issued thereon, and to sej; aside the levy thereunder, will not lie.

The complaint contained allegations to the effect that one W. made an assignment for the benefit of creditors, which was accepted by plaintiff as assignee, and duly filed; that plaintiff thereupon took possession of the assigned property, and proceeded to make an account of the assets, which he had been unable to complete, and therefore had not filed his inventory and schedules; that it was his intention to file his bond as soon as the amount thereof could be fixed ; that the day after the assignment, the sheriff defendant; by direction of his co-defendant, the judgment creditor, against the protest of plaintiff, and on notice of his claims, levied upon the assigned property under an 'execution issued on a judgment that day obtained in the city court, and gave notice of his intention to sell the same on the premises. It further alleged, among other things, that irreparable damage will result, as the sheriff announced that he would sell the goods at auction, by which means the full value thereof will not be obtained; that plaintiff is unable to furnish the necessary replevin bond; that he is without adequate remedy at law, and cannot perform his duties as assignee unless the court interposes ; that any remedy at law which he may have, must be tardy, and its prosecution impede the execution of the trust; and the complaint prayed that the defendants be enjoined from taking any proceeding under the judgment and execution, and that the levy be set sustained.

Held, insufficient to entitle plaintiff to equitable relief, and that a demurrer thereto should be sustained.

It seems, that such a complaint fails to state any cause of action whatever.

p. 422

Before Van Vokst and Feeedman, JJ.

Decided December 7, 1885.

Appeal from judgment entered on order sustaining defendant’s demurrer to plaintiff’s complaint, and from said order.

The complaint alleged ¿hat on April 16, 1885, one George F. Wilson, engaged in business in New York city, made an assignment for the benefit of creditors, of the property of the limited partnership carried on under his name, and of which he was general partner, to plaintiff, which assignment was duly accepted by plaintiff, and filed in the county clerk’s office April IT, 1885 ; that plaintiff, on the same day, took possession of the assigned property and proceeded to take an account thereof, which he had not been able to complete, and therefore had, not been able to file his inventory and schedules; that when this was done and the amount of his bond could be fixed, it was his intention to file it; that the day after filing said assignment, defendant Drewson obtained a judgment in the city court of New York against plaintiff’s assignor for $1,091.T6, and issued execution thereon, directing the sheriff defendant to satisfy the same out of the property of plaintiff’s assignor ; that on said last named day, the sheriff defendant, through his deputy, against defendant’s protest and with full notice of his claim, levied upon the assigned property in plaintiff’s possession, and gave notice of his intention to sell the same upon the premises. The complaint then proceeded :

‘ ‘ Fifth. Plaintiff further alleges that the said stock of buttons, laces, braids, combs and notions is, as he is informed and believes from such investigation as he has been able to make, worth at least the sum of $15,000, but he believes that care and judgment must be exercised in the sale thereof to realize such sum therefrom, or any sum approaching it. Plaintiff further alleges that a sale under the execution hereinbefore set forth, would result

p. 423

in irreparable injury and damage to the estate which he holds as assignee for the benefit of the creditors of said George F. Wilson, and would seriously and irreparably decrease the value thereof ; that the sources of plaintiff’s information and the grounds of the belief upon this point are the fact that the said sheriff has announced his intention to sell the said goods at public auction, and plaintiff’s knowledge that at an auction sale, under an execution, the full value of goods so sold, or anything approaching thereto, is not realized.

“Sixth. Plaintiff further alleges that the said George F. Wilson does not in any capacity make any claim to said property, but expressly disclaims all ownership therein or claim thereto.

“ Seventh. Plaintiff further alleges that under said assignment he is a trustee for more than sixty creditors, representing an indebtedness of about $25,000, whoso interest is greatly imperiled by the action of the defendants already taken and the unlawful action they threaten to take.

“Eighth. Plaintiff further alleges that the said levy is excessive in amount, and if the defendants have any right to such property, their claim might be satisfied out of a portion only of said goods ; that while the defendant Davidson as sheriff is so in possession claiming to have levied upon the entire stock, it is impossible for the plaintiff to proceed with the execution of the trust created by said assignment; that he cannot replevy said goods without furnishing an undertaking for their full value, which he cannot do ; that he has no adequate remedy at law, and that it is impracticable for him to perform his duties as assignee and to protect the interest of the creditors under said assignment unless the court interferes to stay the proceedings of the defendants until their right, if any they have, to sell the said property, or any portion thereof, is ascertained, and that it is for the best interest of the plaintiff, as assignee of the estate, and all creditors interested therein, that the defendant’s proceedings be stayed,

p. 424

the property judiciously converted into money and held for the benefit of the parties having lawful claim thereto.

‘ ‘ Ninth. Plaintiff further alleges, that any remedy at law, which he may have against the wrong complained of, must necessarily be tardy and long postponed, and that his being remitted thereto, would unnecessarily and unjustly impede him in the execution of his trust under the said assignment.

“ Wherefore plaintiff prays judgment, that the defendant, Ernst F. Drewson, and the defendant, Alexander V, Davidson, as sheriff of the city and county of New York, their agents, attorneys, deputies and servants be enjoined and restrained from taking any proceedings whatever under the said judgment, entered in favor of the said defendant Drewson, against George F. Wilson, on April 18, 1885, or upon the execution issued thereon.

“That the alleged levy, made by the defendant Davidson, as sheriff, &c., be vacated and set aside, and the property so levied upon be restored to the possession and ownership of the plaintiff, for the purpose of the trust created by the said assignment.

“ That the plaintiff have such other and further order and relief as he may be entitled to, in equity and good conscience, together with costs.

James M. Townsend, Jr., for appellant.

The complaint presents a perfect cause of action for equitable relief (High Inj. § 119 ; Wilson v. Butler, 3 Munf. [ Virg.] 364 ; Boyce v. Grundy, 3 Pet. 210 ; Watson v. Sutherland, 5 Wall. 75 ; 3 Wait's Actions & Defenses, 684).

In cases where the property is affected by a trust, a court of equity will always interfere to preserve the trust estate in specie (High Inj. §§ 370, 371; Scarlett v. Hicks, 13 Florida, 314).

Blumenstiel & Hirsch, for Drewson, respondent,

cited Drewson v. Am. Surety Co., G. T. Supr. Ct., First Dept. Oct. 1885, Opinion by.Daniels, J. (MSS.).

p. 425

W. Bourlce Cochran, for the sheriff, respondent.

An execution was issued to the defendant, the sheriff of the county of New York, out of the city court, on a judgment recovered in an action in favor of the defendant Drewson, against one Wilson. The sheriff, by the direction of the defendant Drewson, levied upon goods and merchandise, which Wilson had formerly owned, and which, before the recovery of the judgment against him, he had transferred to the plaintiff, as his general assignee for the benefit of his creditors.

This is an action on the equity side of the court, in which the plaintiff seeks to enjoin the sheriff from taking any proceedings whatever, under the judgment and execution in favor of the defendant Drewson, and asks that the levy be set aside. For this extraordinary relief no sufficient facts are alleged. Equity should interfere to arrest the execution of process issuing out of another court, only upon satisfactory grounds. The defendants demurred to the complaint, upon the grounds that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained.

Treated as an action for equitable relief through a perpetual injunction, restraining the sheriff from executing the process in his hands against the property of the judgment debtor, it cannot be sustained against the objection constituting the ground of demurrer. If the property levied upon did not belong to the judgment debtor, but was the property of the plaintiff as his assignee,the remedy of the latter was by a legal action to recover damages, or he could, upon giving security, have commenced an action for the claim and delivery to him of the property. The remedy afforded by law for the recovery of damages to the full extent of the plaintiff’s injury, is ample.

It is only when the remedy at law is insufficient, that

p. 426

a court of equity will interpose by injunction (High on Inj. §§ 458, 462).

Had the complaint been of a nature to allow legal redress, and had appropriate allegations, adapted to such a cause of action, been stated in the complaint, the demurrer would not have been sustained, and such cause of action could have been tried.^[1]

The complaint states facts upon which equitable relief only is asked. And in order that there might be no doubt as to what relief the plaintiff expected, under his facts, and that it was equitable only, he states in his complaint, that a remedy at law must be tardy, and that its prosecution would impede the execution of the trust under the assignment to him. These constitute no sufficient reasons for an action in equity.

If the plaintiff has been unjustly deprived of the possession of the goods in question, their full value can be recovered of the sheriff in an appropriate action, and with the moneys so collected, the plaintiff can proceed to the execution of his trust, so that the injury of which complaint is made is not irreparable.

Under such circumstances, equity will not restrain the execution of the process issued upon the judgment, nor a sale of the property thereunder (Freeman on Executions, § 437).

The complaint states no ground which would authorize a court of equity to interfere, and, in fact, no cause of action whatever:

The order from which the appeal is taken is affirmed, with costs and disbursements of the appeal.

Freedman, J., concurred.

* In Willis v. Fairchild (51 Super. Ct. 405), it was held that a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action, only raises the question whether or not plaintiff is, under the allegations, entitled to the relief demanded; not whether those allegations entitle him to some other relief. But see contra, Mackey v. Auer, 8 Hun, 183 .

Cases cited

Boyce's Executors v. Grundy 3 Pet. 210 SCOTUS p. 424