First Nat. Bank v. Shuler , 89 Hun 303 ( 1895 )

MAYHAM, P. J.

This appeal arises out of the following facts: The plaintiff in this action, being a judgment creditor of Isaac C. Shuler, in his lifetime commenced a creditor’s action to set aside certain conveyances and assignments made by him to Mary A. Booth and Elizabeth N. Shuler, and a general assignment for the benefit of creditors, made by the judgment debtor to Hicks B. Waldron, all of whom were made defendants in this action. The defendants Isaac C. Shuler and Elizabeth N. Shuler answered in the action, taking issue upon the allegations of the complaint therein. After the issue was joined, and before the trial of the action, Isaac C. Shuler died, leaving a last will and testament, wherein he named Elizabeth N. Shuler as sole executrix, and made her the sole devisee and legatee of all of his estate, real and personal; whereupon the plaintiff obtained an order of the court for leave to file and serve a supplemental complaint. That complaint, in addition to the allegations of the original complaint, alleged the death of Isaac C. Shuler, mailing execution and probate of his will, and the appointment and qualification of Elizabeth N. Shuler as sole executrix of that will. That motion was made, and the relief granted, upon notice to all the surviving defendants in the action. No issue was taken by the defendants upon the allegations of the supplemental complaint, and the same were, therefore, admitted. The cause was tried before Hon. Charles R. Ingalls, as sole referee, who, after hearing the case, made his report, wherein, among other things, he found and adjudged several of the conveyances and assignments made by Isaac 0. Shuler, and his final assignment for the benefit of creditors, fraudulent and void, and directed judgment setting, aside such conveyances and assignments, and adjudging them void as against the plaintiff, as judgment creditor. To some portions of the findings of fact and conclusions of law in the report of the referee, the defendant Elizabeth N. Shuler, .by her counsel, excepted. Upon the filing of the report, an application was made by the plaintiff to the special term for a confirmation of the same, and for judgment upon the report in favor of the plaintiff. Upon notice of such application, Elizabeth N. Shuler, by her attorney, gave notice of a motion to set aside the report, or correct or modify the same, and also for an order that she, as executrix of the last will and testament of Isaac 0. Shuler, be made a defendant in the action. The motion for confirmation and judgment, and the motion made by the defendant Elizabeth to set aside the report, and to be made a party defendant, were all ordered to be heard before Mr. Justice LANUON, at special term, who subsequently heard the applications on behalf of the plaintiff and defendant, whereupon he denied the motion of Elizabeth N. to set aside the report, and to be made a party, with costs, and granted the motion of the plaintiff for interlocutory judgment, and, in and by such interlocutory judgment, appointed a receiver of the property and effects of Isaac C. Shuler, deceased, and also a referee to take and state the accounts of the assignee for the benefit of the creditors of Isaac C. Shuler, and also of Elizabeth N. Shuler, for any property in their, or either of their, hands, belonging to the estate of the deceased. On the hearing before said referee, in taking the account directed by said interlocutory judgment, the appellant, Elizabeth N. Shuler, appeared by counsel, as did the counsel for the plaintiff; and the referee, after hearing counsel, made his report, wherein he followed the directions of the report of the referee made in the trial, and fixed and adjudged the amount and kind of property found by him in the possession of the assignee for the benefit of creditors, and also of that in the hands of Elizabeth' N. Shuler, belonging to the estate of the deceased. That report of the referee was duly filed, and upon it and the report of the referee in the action, and the interlocutory judgment entered thereon, final judgment was, on motion at special term, held by Justice LAHUON, entered in the action, from which the defendant Elizabeth N. Shuler appeals to this court, bringing up, as well, the interlocutory judgment for review.

We think the learned trial judge at special term was clearly right in denying the application of Elizabeth N. Shuler to be brought in as executrix. Within the authorities referred to by him, she was properly before the court in her representative capacity after the filing of the supplemental complaint. There can be but little doubt but that, if she had so desired, she could, after the service of the supplemental complaint upon her, have interposed an answer in her representative capacity, without any further leave of the court to do so. She was, therefore, for all the beneficial purposes of her defense as executrix, before the court, and entitled to be heard in that capacity in this action. That being so, there could be no good reason for allowing her, after the case had been finally disposed of, to present new issues, and render the work already accomplished in the case, perhaps, entirely nugatory. The order, so far, at least, as it refuses her application to be made defendant, should be affirmed, with costs.

We have also carefully examined the various questions raised by the learned counsel for the appellant in reference to a modification of the interlocutory judgment, as asked for by them, as well as their application, on the whole case, for a reversal or modification of the decree entered therein, and are of opinion that the same should be affirmed upon the opinion rendered by the judge at special term. Most, if not all, of the questions raised by the learned counsel on this appeal, were clearly and succinctly examined and passed upon in the opinion handed down by the special term judge. We think the interlocutory and final judgment should be affirmed upon that opinion. Judgment affirmed, with costs. All concur.