Carroll v. Cone , 1862 N.Y. App. Div. LEXIS 234 ( 1862 )

By the Court, James C. Smith, J.

I think this case was disposed of correctly, at the circuit. Even if it be assumed, in accordance with the claim made by the defendant, that the money received by him as the avails of the draft of the president of the Genesee Valley Rail Eoad Company, was the property of the company, and not of the plaintiffs, yet it seems to me clear that prior to the time of the commencement of this suit the company transferred all their rights in respect to the money to the plaintiffs.

The assignment to the plaintiffs, executed by the president and secretary of the company, in pursuance of authority con-conferred by a resolution of the board of directors, on the 1st of February, 1860, in terms transferred to the plaintiffs “-all and any claims and demands which said company may have for the avails of said draft, so received by said Cone,” and expressly authorized them “to collect the same for their own benefit and use.”

It is insisted by the defendant that the assignment was unauthorized, as it appears to have been executed several days before the adoption of, the resolution. This argument is based upon the circumstance that the assignment is dated on a day prior to that on which the resolution was passed; but it is answered by the fact that one of the officers did not sign the assignment until after the adoption of the resolution, and as the signature of both was essential to its validity it could not have beén delivered till after that time. The circumstance that it was dated and signed by the other officer in anticipation of the action of the directors, is of no consequence.

It is also urged by the defendant that it does not appear that the president and secretary were the “proper officers” to execute the assignment. But I think it is to be presumed, in the absence of proof to the contrary, at least in favor of third persons dealing with the company, that they were the proper officers for that purpose, and that they acted in pursuance of the authority conferred by the resolution.

There is no question but that the assignment, if properly executed, was sufficient to transfer to the plaintiff all the rights of the company against the defendant, in respect to the avails of the draft. The avails consisted of money, and that having been deposited with the defendant as a banker, to the credit of the company, he of course became thereby indebted to them for its amount, payable on reasonable demand. It does not appear that a demand of payment was made by the company before, or by the plaintiffs after the assignment; but if the defendant, by his words or conduct, denied the right of the depositor, as, for instance, by placing the deposit to the credit of a third person, he thereby became presently liable to an action for the amount, without a formal demand. I think that effect resulted from the defendant’s agency in the transaction with the sheriff, shortly after the money was deposited, and before the assignment to the plaintiffs. That transaction was simply an attempt by the sheriff, by virtue of an execution which he held against the company, to levy upon the debt owing to them by the defendant; and to enable him to do so, the defendant, voluntarily and without authority from the company, counted out the amount of the debt, in bank bills and specie, and handed it to the sheriff.

In this, the defendant clearly did not act in obedience to any requirement of the law. The money thus separated by him from the contents of his vault was his property, and not that of the company, and was not liable to levy under an execution against them. (6 Cowen, 494.)

He now insists, however, that the transaction was not an attempt to levy on the money, but was a payment by him upon the execution, under section 293 of the Code of Procedure. This claim is not 'supported by the evidence. It does not appear that a receipt was given by the sheriff, as required by the statute, or that the bank bills- were indorsed on the execution, or in any manner applied to its payment; or that there was any agreement or understanding as to the amount for which they should be applied. On the contrary it clearly appears that the transaction was regarded by the parties as a levy. The sheriff testifies: “I went into the bank and inquired of the defendant if there was any money there, belonging to the company. He said there was $298.50.. I told him I had an execution, and asked him for the money. He handed it to me and I levied on it, and afterwards sold it.” The defendant’s testimony is equally explicit on this point. He states in substance that when the sheriff said he had an execution and demanded the money, witness sent for the president of the company, and told him.the money was levied on; that he set apart the money, and handed it to the sheriff, and that at the request of the sheriff he put a wrapper around it, indorsed a memorandum, of the levy upon ¿í,.and placed it in his vault, where it remained till the sheriff called and took it away.

The idea that the parties intended an absolute payment is also repelled by the fact that the defendant received a bond of indemnity.

There is no ground for claiming that the plaintiffs are estopped by the conduct of Mr. North at the time of the attempted levy. In the view thus far taken of the case, the plaintiffs then had no interest in the matter. Mr. North was acting as the president of the company, and as such he objected to the transaction.

[Monroe General Term, December 1, 1862.

As the considerations above presented lead to the conclusion that the plaintiffs are entitled to recover, it is unnecessary to inquire whether the action may be maintained upon either of the other grounds discussed on the argument.

The order denying a new trial should be affirmed.

Ordered accordingly.

Johnson, J. C. Smith and Welles, Justices.]