Слике страница
PDF
ePub

FIRST DEPARTMENT, MARCH TERM, 1893.

Moschowitz & Russell, such sum to be devoted to the payment of such liabilities when ascertained, and, if not exhausted in their liquidation, overplus to be equally divided between the parties and also a judgment for the amount of the assets taken by Moschowitz in excess of such $44,000. She has now also a judgment against the defendant McCall for over $22,000, being the one-half of the value of such assets, to which interest is to be added. And when this latter judgment is paid, if Moschowitz deposits his $44,000 in court and Herman Moschowitz succeeds or does not succeed in establishing his claim, the plaintiff will in the one case have such liability paid and will receive half the value of the assets independent of such liability, and in the other case will receive the money twice - $22,000 from the money deposited by Moschowitz and $22,000 from McCall; and thus in any event will in reality be receiving over $44,000 for the decedent's interest in the assets of the firm of Moschowitz & Russell, which is adjudicated at twentytwo thousand odd dollars.

But it is urged that at the time of the filing of the bill for an accounting and the taking of the judgment in that action, the plaintiff therein was ignorant of the fact that the new firm had converted to its own use all the assets of the old firm, and that this relieves her from the result of the bringing of that action and the taking of that judgment. If this were true, it might be a reason for relieving her from such judgment in a proceeding properly taken for that purpose. But it is hard to see how she can be deemed to have been in ignorance of the fact that the surviving partner was converting to his own use all the assets of the old firm, in view of the allegations of her complaint in that action. She alleges that the surviving partner had continued to carry on the business conducted by said firm prior to the death of said Mary A. Russell, and to use the assets and property of said firm in said business, and had made no effort to sell and dispose of said assets and property except in the ordinary course of said business, etc. This allegation shows that the plaintiff knew that the surviving partner was not liquidating the business, but was treating the assets as his own and conducting his own business therewith. It is true she also alleges that the defendant has in his possession, unsold and undisposed of, the greater part of said copartnership assets and property, and that the same are FIRST DEPARTMENT, MARCH TERM, 1893. becoming less and less valuable. But notwithstanding this allegation by her proceeding in that action, she took no means whatever to reach said assets or to have them sold and the proceeds devoted to the liquidation of her claims, but contented herself with demanding nothing but a money judgment against the surviving partner for the value of the interest of the deceased partner in the firm. How could it be found, under these circumstances, that the suit was brought in ignorance of the misappropriation by the surviving partner of the assets of the firm, we cannot imagine. And there is no such finding contained in the record. But, with knowledge of such misappropriation and in the face of an allegation that the surviving partner had still possession of a large amount of these assets, the plaintiff takes a personal judgment against him for the value of her share or interests therein. How can she then impeach the title of anybody who has come into possession of these assets through that surviving partner?

A. has converted goods belonging to B.; B. sues and obtains a money judgment, and A. transfers the property to C. Can B. recover against C. also? We think not.

Fowler v. Bowery Savings Bank (23 Abb. N. C. 133) is a case which strikingly illustrates this principle. The plaintiff had deposited money with the defendant bank, which, under a mistake, paid it out to a third party named Flynn. The plaintiff, knowing of this, brought an action and secured a judgment against Flynn and attempted to realize upon the judgment. Failing to do so, the plaintiff turned about and sued the bank, but the court held that the first action was a bar, and that having made an election the plaintiff was bound by it. The court say: "If a trustee is bound to pay money to a beneficiary as a debt due from him to the beneficiary, then if he make payment to another person, he has not paid the debt, and the money paid is not in fact the property of the beneficiary. In such case the beneficiary may ignore payment and sue the trustee as his debtor, or he may ratify and adopt the payment and sue the person receiving the money as his debtor, but he cannot do both."

So, in the case at bar, the plaintiff might have pursued the property, or, in default of its recovery, have obtained a judgment. But, having brought a suit with knowledge of the misappropriation and

FIRST DEPARTMENT, MARCH TERM, 1893.

asked for a money judgment and obtained the same, he cannot pursue the property, as is attempted to be done in the present action. The plaintiff's predecessor, at the time that she brought the action for an accounting, was not ignorant of the misappropriation, as already stated. She may have been ignorant of the fact that others were interested in the misappropriation besides the surviving partner. And this might have afforded a reason for relief from the judgment against the surviving partner upon proper proceedings for that purpose; but it forms no ground, after ratifying the misappropriation by the one party by obtaining a money judgment, for the obtaining of another money judgment against another party for the same cause of action.

We are of opinion, therefore, that the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

FOLLETT, J., concurred.

Judgment reversed and new trial ordered, with costs to the appellant to abide event.

EDWIN C. DONNELL, Plaintiff, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Defendant.

Removal of an employee of a municipal department of the city of New York - action

for salary

An employee of one of the municipal departments of the city of New York was notified that he "was suspended from further duty in the department" from and after the date of the notice; some months thereafter, having received a notice that he was "reinstated" in the department, at a certain salary, to take effect on the date thereof, he brought an action against the city for his salary for the period between the two notices, alleging that he had been unlawfully "suspended" from duty.

Held, that the action could not be maintained, since it was apparent that the notice to the employee that he "was suspended from further duty" was intended and understood to sever his connection with the department, and was a "removal" from his position and not merely a temporary "suspension" from duty.

MOTION by the plaintiff, Edwin C. Donnell, for a new trial, on exceptions ordered to be heard in the first instance at the General

FIRST DEPARTMENT, MARCH TERM, 1893.

Term, on a dismissal of the complaint at the New York Circuit on the 24th day of June, 1892.

W. E. Cook, for the appellant.

E. H. Hawke, for the respondent.

VAN BRUNT, P. J.:

This action was brought to recover a sum alleged to be due to the plaintiff for salary as stenographer in the department of public works in the city of New York for a period during which he alleges he was unlawfully suspended from duty. The answer alleged the discharge of the plaintiff and the termination of his employment, and that after the expiration of the period covered by the action, he was re-employed in his old position.

The plaintiff claims that the case is controlled by the rule laid down by the Court of Appeals in the case of Gregory v. Mayor (113 Ν. Υ. 416), it being urged that in that case it was held that an employee in one of the departments of the city of New York could not be suspended, but if he was unfit for the position which he occupied, or there was no work for him to do, it was the duty of the head of the department to remove him, and that he could not be suspended without pay, the court in that case saying: "It seems to us that the power of removal in such a case as this was intrusted to the commissioners to be exercised, if at all, at once and finally. It was not meant that they should have power to arbitrarily suspend without pay, and then appoint some other in the place of the suspended man, and perhaps suspend and remove the alternate and again appoint some other. The tendency would be to confuse instead of perfecting the service. The effect upon the suspended man would also be demoralizing, causing him to expend his time in efforts to get reinstated rather than to procure a livelihood in other ways, which would be the result of a removal."

It will be seen by the language used by the court that they speak of a man, who has been suspended, spending his time in efforts to get reinstated rather than to procure a livelihood in other ways. I have been unable to see what would be the necessity of a man who had been merely suspended being reinstated. If he had been removed he might seek to get reinstated; but if he had never been

FIRST DEPARTMENT, MARCH TERM, 1893.

removed there would be no place or position into which he could be reinstated.

In other words, he has got to be unseated before he can be

reseated.

The facts in the case at bar are these: On the 31st of December, 1880, the plaintiff was appointed a stenographer in the department of public works at a salary of $1,200, to take effect on the 1st of January, 1881. On the 6th of April, 1886, he was informed that the services of two stenographers were not needed in the department, and it being the commissioner's duty to dispense with any unnecessary force, he was suspended from further duty in the department from and after that date. On the 24th of September, 1886, he received the following notice: "You are hereby reinstated as stenographer in this department at a salary of $1,800 per annum, to take effect this day." At the time of his reappointment, the plaintiff made no claim for salary for the time between the notice that his services were no longer required and his reinstatement, and although he stated that he tendered services to the department the evidence in that regard is quite shadowy.

It is urged upon the part of the defendant that no recovery can be had in this action upon several grounds, one of which is that he was not suspended but removed from his position, and subsequently reinstated; and another is, that he was not an officer and did not have an office within the meaning of the statute.

In view of the conclusion at which we have arrived on the first ground upon which the complaint is dismissed it will not be necessary to discuss the second.

It is apparent that the plaintiff on the 6th of April, 1886, was removed from his position in the department of public works. He was then notified that the services of two stenographers were not needed in the department, and that he was suspended from further duty in the department from and after that date, and he did no further duty in the department until reinstated on the 24th of September, 1886. Now, when a person is suspended from further duty in the department, it is difficult to see what distinction there is between such a suspension and a removal. He was not suspended until some other time, or some other date, or until further notice. :

HUN-VOL. LXVIII. 8

« ПретходнаНастави »