Kelly v. . Babcock

Peckham, J. When the plaintiff rested his case before the-referee, the defendant, moved to dismiss the complaint “ on the ground that the plaintiff had failed to show any property of defendants in the attachment suit in the hands of the defendants in this action.” Motion denied and exception. Property was alleged in the complaint to be in their hands and it is nowhere denied in the answer. It is averred in the complaint that, “ at the time of such service ” (service of the attachment), “ said defendants were indebted to or had property in their possession belonging to said Malarcher & Co., in a large amount.” This is nowhere denied in the answer and is therefore taken as true. The objection, it will be observed, does not go to the amount, but it is that not “ any property ” was shown in defendants. This shows that the exception was not well taken. , ' . The exception to the findings of fact cannot be sustained, as it is not well founded. It is to the findings, “ that the defendants have not produced any proof before him of the allegations of their answer, that the ‘ amount due such creditors exceeded the surplus in their hands, nor of the amount due to such creditors.” It is certainly true that they did not produce such proof. That answers the exception. Whether they were legally required to do so or not is quite another question, which this exception does not raise. The defendants did not request the referee to make any findings of fact. The only remaining exception is to the referee’s conclusion of law, that the plaintiff is entitled to recover $1,150.60, and interest, from the defendants. *321 Assuming that the finding of fact of the referee is right, as it is not in any manner excepted to, viz.: “ That the defendants in the attachment sold to these defendants goods for $40,000, $23,417.70 whereof was paid by application to a debt due the purchasers, leaving a balance due from them of $16,528.30, and that it was in such instrument of transfer declared and agreed that the balance of such purchase money might be paid to and among the creditors of the said firm, and the surplus, if any, to such firm,” there is then no ground for a claim that this balance of $16,524.30 did not belong to the defendants in that suit. That sets forth no covenant or agreement on the part of the defendants that they would pay such balance to the creditors. The transfer as set forth simply authorizes them so to do. It “ might be paid,” is the language. But it was a debt due to the attached debtors. It might be discharged by a payment thereof to their creditors, nothing more. Ho trust is created or liability assumed by the defendants thus to pay. The money therefore still belongs to the vendors. (Kelly v. Roberts, 40 N. Y., 438.) If there be uncertainty or doubt as to this finding, it will not enure to the defendants’ benefit to reverse a judgment. The judgment should be affirmed with costs. All concur except Allen, J., not voting. Judgment affirmed.