Page images
PDF
EPUB

Eckerson and another agt Vollmer, &c.

G. A. SHUFELDT, for plaintiffs.
J. W. GILBERT, for defendant, Magdalena Vollmer.

Rockwell, Justice. There is no foundation for this motion. In an action against husband and wife, service of process on the wife, is only necessary where the proceeding is against her in respect to her separate estate, in which case the husband is only a nominal party. In other cases, the husband, upon being served, is bound to enter a joint appearance and put in a joint answer for himself and wife. (Leavitt agt. Cruger, 1 Paige, 421 ; 3 Chitty's Gen. Pr., 263.)

In this case, neither husband nor wife could have answered separately without being authorized to do so by the order of the court, and no reason has been shown why the wife should have been allowed to put in a separate answer. The only interest which she had in the premises affected by the judgment, was her inchoate right of dower. This kind of interest results from the marital relation, and does not belong to the wife as her separate estate. The wife is deemed, in law, to be under the protection, as well as under the power of her husband. It was his duty, in this case, to have put in a suitable defence for his wife, and he is presumed to have done so until the contrary is shown. Indeed, if he had successfully defended himself, such defence would necessarily have enured to the benefit of his wife. All of her interest in the premises was a mere incident to his. It is not shown that she now proposes to put in a defence upon any different ground from that upon which the action has already been defended.

Motion denied.

Brahe agt. The Pythagoras Association, and four others.

SUPERIOR COURT.

BRAHE agt. The PYTHAGORAS ASSOCIATION, and four others.

The superior court of the city of New York, has no jurisdiction of an action to

dissolve a corporation created by the laws of the state of New York, and distribute its effects among its creditors through a receiver, or to inquire into the validity of its proceedings to elect its officers, or to restore one unlawfully

displaced. Under sub. 3 of $ 33 of the Code, it has jurisdiction of only those actions in

which the corporation is to be proceeded against, and dealt with throughout, as a subsisting corporation.

April Special Term, 1855.

This case came before the court on a demurrer to the complaint. The Pythagoras Association is a corporation under chapter 319 of the Laws of 1848. The complaint stated the objects and articles of the association, (which articles provided that the contributions made by a member should be refunded to him on being expelled,) what the plaintiff had contributed, his unlawful expulsion, and his right to demand and be paid the sum of $500; that the other defendants improperly managed to procure themselves to be elected trustees—and others to be removed; and also set forth other acts, which, it was claimed, were sufficient to justify a decree dissolving the corporation, and directing its effects to be sold and distributed; and prayed such relief, the payment of the $500, the appointment of a receiver, the removal of the defendants (other than the corporation) from the offices to which they had been elected, and other relief.

The demurrer to the complaint assigned for cause, that several causes of action were improperly united; that the court had no jurisdiction of any of the causes of action, except to recover of the corporation the $500; and that, to such an action, the corporation was the only necessary or proper party defendant.

Brahe agt. The Pythagoras Association, and four others.

H. S. Dodge, for defendants.
A. L. Robertson, for plaintiff.

BoswORTH, Justice.-Unless this court has jurisdiction of an action or proceeding to dissolve a corporation created by the laws of this state, and distribute its effects among its creditors, through a receiver, or to inquire into the validity of its proceedings to elect its officers, and to restore one unlawfully displaced, there is a misjoinder of causes of action and of parties.

To an action against a corporation, to recover of it a mere money demand, its officers are neither necessary nor proper parties.

It is not pretended that this court, prior to the Code, had jurisdiction of any visitorial powers over a corporation, or of any proceedings instituted to obtain a decree dissolving it, and distributing its effects. Such powers could only be exercised by, and such proceedings could be had only in, the court of chancery. (2 R. S., 462 to 472.)

Under the present constitution and the judiciary acts of 1847, the supreme court was vested with the general powers and jurisdiction previously possessed and exercised by the court of chancery. There is no law conferring any such jurisdiction and powers upon this court, unless they are granted by sub. 3 of § 33 of the Code. Reading that so as to make its terms confer the most extensive jurisdiction which they are capable of granting, it gives this court jurisdiction of all actions against a domestic corporation, “upon any cause of action arising therein;" that is, in this state.

These terms are not more comprehensive than those of section 427, which declares, that an action against a foreign corporation may be brought in this court, “ by a resident of this state, for any cause of action.”

I think section 33 includes only such actions as are or may be brought to enforce or protect some right, or redress or prevent some wrong ; and as are brought in only those cases in

Lewis Hergman and Adolph Alexander agt. Mority Deutlebach and others.

which the corporation is to be proceeded against, and dealt with throughout, as a subsisting corporation. .

If these views are correct, the only cause of action stated in the complaint, on which the plaintiff can have relief in this court, is the one on which he bases his claim to recover from the corporation the sum of $500. To an action upon such a cause of action, the corporation is the only proper party. I think the demurrer is well taken. The plaintiff may amend his complaint on payinent of costs.

SUPREME COURT.

Lewis HERGMAN & ADOLPH ALEXANDER agt. Mority DET

TLEBACH and others.

On a fi fa, against one of several partners, the co-partnership property may be

seized, and the interest of the judgment debtor in the same sold by the sheriff ; but subject to an accounting among the partners, on dissolution. And at seems, that the same principle must apply to the case of an attachment under

the Revised Statutes. Where the sheriff, by virtue of an attachment, seizes and takes the partnership

books and papers of a party, his power is limited to take them only; and

having taken them, he is required to safely keep them. Where a deputy sheriff, after taking possession, assumed to examine such books

and papers, take copies of the business letters, look into the correspondence of the partners, &c., held, that he was guilty of a gross abuse of his powers, and of the process of the court. He usurped the exercise of a discretion

which belonged to the judge alone. Leiters and correspondence are not among the papers which the statute author

izes to be taken under process.

New-York Special Term, April, 1855.

Motion that the books and papers taken under attachment from possession of the defendants, Epstein and Horig, on the attachment against Dettlebach, as a non-resident, under 2 R.

Lewis Hergman and Adolph Alexander agt. Mority Dettlebach and others.

S., p. 3, be restored to the possession of the defendants from whom taken.

Wm. M. Evarts, for motion.
A. F. Smith, opposed.

Cowles, Justice.-It seems to be well settled that on fi. fa. against one of several partners, the co-partnership property may be seized, and the interest of the judgment debtor in same sold by the sheriff; but subject to an accounting among the partners, on dissolution. (Phillips agt. Cook, 24 Wend., 387; Waddell agt. Cook, 2 Hill, 47 ; Walsh agt. Adams, 3 Denio, 125.) And I see no reason why the same principle does not apply to the case of an attachment under the Revised Statutes. If so, the sheriff, under the warrant, had a right to take the co-partnership books, &c.

But the power of the sheriff, under the attachment, is limited to the right to take them only; and having taken, he was required to safely keep them. (2 R. S., 3, 87.)

The sheriff had no power or authority beyond that, except as directed by the officer who granted the warrant. (Vide, $ 8.)

When, therefore, the deputy sheriff assumed to examine such books and papers, take copies of the business letters, look into, the correspondence of the partners, or do any other act in relauon to them, than simply to keep them safely, subject to the direction of the judge who allowed the process, he was guilty of an unpardonable abuse of his powers, and of the process of the court.

It was usurping the exercise of a discretion which the statute reserved to the judge alone, and reserved to him, too, for reasons of the most obvious character. To tolerate such a proceeding would lead to the most gross abuses, and enable the process of attachment to be used for inquisitorial purposes, which, in its consequences, would be in derrogation of the spirit of the Bill of Rights.

It is evident, also, from the affidavits, that many papers, not

« PreviousContinue »