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Acome agt. The American Mineral Company.
dates; and there is a further allegation that, "on account of said goods and chattels, the defendant is, and remains, indebted” in a sum considerably less than the aggregate amount. But no promise to pay that or any other sum is stated. There was not in Allen agt. Patterson, supra ; but in that case there was but one sale and delivery.
Here the whole claim, it is true, is for goods and chattels sold and delivered; but there were two contracts of sale; and each transaction-as to consideration, time, quantity, price, sum of the price and interest thereon-is stated separately, but yet in one count, (Jourdain agt. Johnson, 2 Cr. M. & R. 564;) Galway agt. Rose, (6 M. & W. 291,) goes a great way; but in that case, and also in Bailey agt. Freeman, and Moss agt. James, above cited, and in Webber agt. Twill, (2 Suund. R. 121, a,) there was a promise to pay; and no doubt there was in Nelson agt. Swan, (supra. And see 2 Saund. R. 121, c note 2 & b.) No promise was alleged in Allen agt. Patterson, but this point did not arise.
At any rate, if there should be no amendment of the complaint, this question had better be disposed of by a direct adjudication upon the demurrer; which is a much better way of trying the validity of pleadings, where there is any room for doubt, than by an application to a judge for judgment because of frivolousness. It should be a strong case to authorize an interference in this summary manner. (Van Santf. Pl. 433; Gra. Pr. 759; 1 Whitt. Pr. 468.)
Hammond and others agt. The Hudson River Iron and Machine Co. and others.
John C. Hammond and others agt. The Hudson River IRON
AND MACHINE COMPANY and others.
If the provisions of section 292 of the Code, in relation to supplementary pro
ceedings, can, under any circumstances, be construed to apply to corpora
tions, (which is doubted,) they cannot embrace those which are insolvent. The provisions of the Revised Statutes (2 R. S., 463,) are preserved by § 471
of the Code, and must govern proceedings supplementary to execution, against insolvent corporations. (This agrees with Hinds agt. The Canandaigua
& Niagara Falls R. R. Co., ante, p. 457.) Therefore, held, that where a judgment creditor had proceeded under $ 292 of
the Code, against an insolvent corporation, to the appointment of a receiver, &c., that he was not thereby entitled to a preference over the other creditors of the corporation; and that he, with all the other creditors, must be subject
to the provisions of the several sections of the Revised Statutes, supra. And on petition and motion, on behalf of other creditors of the corporation, to
set aside such proceedings, and for general equitable relief for the benefit of all its creditors, and for the appointment of a receiver, &c., held, that all other suits and proceedings instituted under 9 292 of the Code, and otherwise, for the berefit of particular judgment creditors, must be stayed until the determination of the present action, instituted under the provisions of the Revised Statutes for the benefit of all the creditors. There seeming to be no objection to the receiver already appointed, in the pro
ceedings under $ 292 of the Code, his appointment was continued under the subsequent action.
Washington Special Term, Sept., 1854.
This is a motion for the appointment of a receiver, and for other relief, as specified in the notice.
The petition of the plaintiffs states that plaintiffs, on the 26th of June, 1854, obtained a judgment in the supreme court of this state, against the defendants, for $10,671.48 damages and costs, upon which execution was issued to the sheriff of Washington county, (the defendants' place of business having been in Fort Edward, in said county,) and has been returned wholly unsatisfied. That after the return of the execution,
Hammond and others agt. The Hudson River Iron and Machine Co. and others and on 29th July, 1854, plaintiffs commenced an action against all the defendants, who have all appeared, but no answer has been put in. That the company entirely stopped business in May last ; that before stopping, and previous to January, 1854, the company had become insolvent, and had ceased to pay anything towards its debts before stopping business. That the amount of the indebtedness of the company, according to a statement furnished by it in June, 1854, was between $90,000 and $100,000; and that its debts, at that time, and in January, 1854, amounted, at least, to $70,000; and that its property was not sufficient, at those times, to pay one half the amount of its debts. That its property was all personal and tangible, and has been sold on execution or executions, and on judgments belonging to defendant Beach; except a contract for the sale of certain real estate ; and that it is now possessed of no property except from its debts due, and from which may be realized $3,000, and except its interest in said real estate and water power, upon which it has heretofore carried on business, and which it purchased or agreed to purchase from the Fort Edward Manufacturing Company, and which is now held by said defendant, said company, by contract from said other company. That the original purchase money for said real estate and water power, was $13,000, upon which there is now due the sum of $7,000 or thereabouts. That the defendant, the company, has made valuable erections and improvements upon said property, and their interest therein is now worth $10,000. That defendant, Beach, claims to own and hold a judgment against the defendant, the company, for $1,025.31, obtained on the 18th of July, 1854, upon which an execution has been issued to the sheriff of Washington county, and returned unsatisfied; and said Beach, since the return of said execution, has commenced an action in the supreme court of this state, against the defendant, the company, and the Fort Edward Manufacturing Company, for the satisfaction of said judgment out of the interest of the defendant therein, in the contract for the real estate aforesaid ; and that its interest may be sold or transferred to him, (Beach) upon such terms as the court shall deem just; and,
Hammond and others agt. The IIudson River Iron and Machine Co. and others.
also, for a specific performance of said contract. That said Beach claims to be the assignee and owner of another judgment obtained by one Harry Chapman against the defendant, the company, on the 26th day of July, 1851, for $3,331.05, and upon which proceedings supplementary to execution have been instituted by Beach against said company, and Hazen W. Bennett appointed receiver ; that said Beach claims the exclusive benefit of said proceedings, and that said judgment, so assigned, be first paid by the receiver from the assets of the company which may come to his hands. That said receiver claims the exclusive right and control over the remaining property and assets of the company, as such receiver, for the exclusive benefit of said judgment, so far as may be necessary for its payment.
That the defendant, the company, is a manufacturing corporation, organized under the act of 1811, and the several acts amending and continuing the same, and was insolvent on the 28th and 30th days of January, 1854. That the company have interposed no defence to the suits or proceedings of defendant, Beach, who is in possession of said real estate, and that the company are colluding with him to give him a preference over their other creditors.
The complaint charges that defendants, Beach and Mears, claim and pretend that they have paid a large amount for said company, as endorsers, and are liable for a still larger amount, in all to åt least $25,000; and that they took a mortgage from said company on the 30th of January, 1854, to cover said amount of $25,000, covering all the estate real and personal of the company; and that they have possessed themselves of all the personal property and assets of the company, and have disposed of the same, or of a large amount thereof, to pay their said liabilities. That said transfer or mortgage was fraudulent, and that said company had, previous to said 30th January, 1854, refused payment of all or some of its notes and debts; that said mortgage was not filed till 25th of May, 1851, at which time the company had stopped payment. That said Beach and Mears had sustained no losses when they sold the property un
Hammond and others agt. The Hudson River Iron and Machine Co. and others.
der said mortgage, nor was the company indebted to them for money borrowed; that a judgment was obtained by Beach a few days afterwards, for all indebtedness, and satisfied by a sale upon execution, and that said judgment was fraudulently obtained. That the amount of the capital stock of the company was $13,000, and that Beach and Mears were original, and still are, stockholders in said company.
The defendants, in their affidavits, deny all fraud, and aver that their liabilities for the company amount to $29,000; that the mortgage was given to secure them against loss. That the judgments which Beach obtained, and now owns and claims, were honestly and fairly obtained for honest and fair debtsand proceedings supplementary to execution, regularly instituted under the Code—and the receiver gave the required bond, and has entered upon the duties of his office. That the amount in his hands will not be sufficient to pay the amount of the first judgment. That the action commenced against the defendant, the company, and the Fort Edward Manufacturing Company, to obtain satisfaction of the judgments mentioned in the complaint, were regularly commenced on and previous to the 22d of July, 1854, and no answer has been received in either of them.
RomEYN & Tabor, for plaintiffs.
C. L. Allen, Justice.—The relief asked for in the notice of motion is various. The first prayer is for the appointment of a receiver, in this action, of the property and effects of the Hudson River Iron and Machine Company, for the benefit of all the creditors of said company, in proportion to their debts respectively, pursuant to the complaint and petition. In considering the motion, I shall lay out of view entirely the charge of fraud, so far as defendants, Beach and Mears, are concerned. That is a matter not to be tried on affidavit or on this motion, but on the trial, if any is hereafter had.
The important question that presents itself for consideration