Albany Brewing Co. v. Barckley

Herwin, J.: On .the 30th of April, 1897, the defendant Barckley, as county treasurer of Albany county, in Consideration of the payment to him by Joseph Seeney of the sum of $500, issued to Seeney a liquor tax certificate numbered 12,953, authorizing and empowering Seeney to traffic in liquors at No. 1235 Broadway in the city of Albany from April 30, 1897, to April 30, 1898, under and pursuant to subdivision 1 of section 11 of the Liquor Tax Law (Laws of 1896, chap. 112). The money which Seeney paid was borrowed by him of the plaintiff on the 26th of April, 1897, and Seeney gave to the plaintiff his note therefor. As a part of the same transaction Seeney executed'and delivered to the plaintiff an instrument in writing in which Seeney, after a recital that a liquor tax certificate was about to be issued to him, the moneys to pay for which had been advanced by plaintiff, assigned and transferred to the ¡olaintiff “ all the right, power and option which I have or which I shall hereafter have under the said tax certificate and the provisions of said statute to surrender or cancel said tax certificate or to have the said tax certificate transferred to any other premises than those above mentioned, or to sell, assign or transfer the said tax certificate, or to receive and collect the amount of any unexpired coupons'on said tax certificate'and any money .due, or to become due, upon the surrender^ transfer or cancellation of said -tax certificate; ” and Seeney also thereby constituted the plaintiff liis attorney, irrevocable, for him arid in his name to transfer to itself or to any other person the said certificate and have'it transferred to any other premises and to surrender and cancel tlié same and to make all necessary instruments to accomplish such purposes; and in the event of such sale or surrender Seeney transferred to the plaintiff any and all moneys received or payable for such tax certificate. Seeney also agreed to deliver up the certificate to the plaintiff upon demand, and authorized the plaintiff to enter upon his premises and take away the certificate at any time. At the time of this transaction it was understood between the plaintiff and Seeney that the plaintiff should furnish Seeney beer during the term of the license. It did so up to October 24, 1897, when it refused to furnish it longer, by reason of the failure of Seeney to make payments. In October the plaintiff recovered judgment against Seeney upon the note, and this judgment has not [339] been paid. In the latter part of October the plaintiff demanded the certificate from Seeney, and he agreed to bring it to the plaintiff on the thirty-first of October to be surrendered. On the 30th of October, 1897, the defendant A. Page Smith, by an order of the Albany county judge in proceedings supplementary to execution upon a judgment in favor of George W. Whitman against Seeney, was appointed receiver of the property of Seeney, and upon the same day the receiver took possession of the said certificate. Upon the first of November following, the receiver surrendered this certificate to the county treasurer together with a verified petition in due form for its cancellation and the payment to him of the proper rebate. The -treasurer thereupon gave to the receiver a receipt for the certificate and a statement of the amount of the rebate and by whom payable, and sent to the State Commissioner of Excise a duplicate of the receipt together with the certificate and the petition for cancellation. The plaintiff claims, and at the trial gave evidence tending to show, that the treasurer or- his deputy, before sending the certificate to the State Commissioner, had verbal notice from plaintiff that it claimed to own the certificate. This, however, was denied on the part of the defendants. On the 24th of November, 1897, the plaintiff served on Mr. Barckley, individually and as treasurer of Albany county; a written notice setting out its claim to the ownership and possession of the certificate and demanding the proceeds or rebate due by virtue of the surrender and cancellation. On the 25th of January, 1898, the plaintiff served a notice on Mr. Barcklej, as treasurer, demanding possession of the certificate and also demanding its value, being the sum of $250. The certificate has not been in possession of the county treasurer since November 1, 1897. The rebate has not been paid to anybody. It appears that on or about December 8, 1897, the State Commissioner.sent to the office of the county treasurer orders for the payment of the rebate, paj-able to the receiver, but they were on the same day recalled. The certificate in question came into the possession of Barckley, as county treasurer, on November 1, 1897. It was surrendered to him in due form by the representative of the party to whom it was* issued, and a surrender statement or receipt given to the person who upon the face of the papers was entitled to it. The county treasurer [340] prior to the surrender had no notice of the "Claim of plaintiff. If the county treasurer before ahy such notice transmitted the certificate to the State Commissioner,,! fail to see upon what basis the county treasurer can be liable for its conversion. Under the statute (§ 25, as amd. by Laws of 1897, chap. 312), it was the. duty of the county treasurer, upon the surrender , of the certificate and the presentment of a petition in due form, - to compute the amount of the rebate, execute duplicate receipts of statements in certain form, deliver one of such receipts to the person entitled to receive the rebate, and immediately transmit the other, together with it-he surrendered' certificate and the petition for cancellation, to the Stats Commissioner. If within thirty days thereafter no proceedings are instituted leading, to a forfeiture of the rebate,, the State Commissioner is then required"tó preparé two orders for the payment of the;rebate, one order for the one-third thereof directed to the State Treasurer, and one order for-the two-thirds thereof directed to the fiscal officer of the proper locality, in this case the city of Albany, and transmit such orders to the officer Who issued the canceled certificate, to be delivered to the holder of the duplicate receipt upon the surrender- of such receipt, which should be be immediately transmitted to the State Commissioner. The canceled certificate is not -returned to the county treasurer; nor is the money in his hands with which to pay the rebate* He is simply to deliver the orders issued by the State Commissioner. In this view of the case, the defendant, the county treasurer, was at least entitled to go to the jiffy on the question whether he transmitted the certificate to the State Commissioner before he had any notice- of the plaintiff’s claim.: If he did, he did not have it in his possession when the demand was made; he had. before that -time lawfully received it and lawfully parted with its possession and would not be liable for .its conversion. The plaintiff, under the power of attorney or instrument of April 26, 1897, had a right at any: time to enter upon the premises of Seeney and take the tax certificate. It is evident that-the instrument above referred to was given as a security for-the money loaned by plaintiff to enable Seeney tq obtain the license. The' plaintiff, under the facts appearing in thje case, as between it and the receiver, had an equitable claim upon thb certificate and any rebate thereon [341] and the receiver took subject to such claim. (Niles v. Mathusa, 20 App. Div. 483 ; Koehler v. Flebbe, 21 id. 210; Matter of Jenney, 19 Misc. Rep. 244 ; affd., 19 App. Div. 627.) The plaintiff did not, however, take possession of the certificate as it might have done, but allowed it to remain upon the promise of Seeney to deliver it on the thirty-first of October to be then surrendered. In the meantime the receiver was appointed, took possession of the certificate and on November first surrendered it to the county treasurer in due form and demanded payment of the rebate. This was done prior to the time the agent of the plaintiff claims to have given the county treasurer notice of plaintiff’s claim. The agent testifies that about noon he was at the county treasurer’s office; saw Mr. Bender, the deputy county treasurer, told him that he had learned that A. Page Smith had surrendered a liquor tax certificate issued to Seeney, and that he then told him that the plaintiff had an assignment of the license, and showed him the instrument of April 26, 1897. Mr. Bender testifies that no such occurrence took place on November first, but that it was several days afterwards and after all the papers had been transmitted to the State Commissioner. From the evidence on the part of the plaintiff it may be inferred that the surrender statement was delivered by the county treasurer to the receiver before the agent of the plaintiff saw the deputy. The plaintiff does not seem to have ever claimed that it desired to use the certificate except for the purpose of obtaining the rebate. It is not apparent that the county treasurer has ever done anything to deprive him of that right. The rebate has not been paid or the orders for that purpose delivered. It seems to me that upon the undisputed facts in this case the county treasurer and the excise department had a' right to consider the surrender of the certificate operative, and if so that the county treasurer was not liable for its conversion. The trial court erred, I think, in holding that the defendant Barckley, as county treasurer or individuaally, was liable for the conversion of the certificate in question. It follows that a new trial should be granted. No judgment was directed as to the defendant Smith, receiver, etc., and the judgment appealed from contains no determination as to his rights. His motion for a direction of a verdict in his favor [342] was denied, as also his motion- to dismiss the complaint. The receiver was evidently brought in as a party defendant for the purpose of having a final determination as to the ownership of the certificate or- rebate. It may be that upon a new trial that purpose may be accomplished. If the pleadings need to be amended, that is a question -for the court below to consider. The plaintiff in his law action as originally commenced was, probably, not obliged to bring in other defendants. (Chapman v. Forbes, 123 N. Y. 532.) Having done so voluntarily, it may be that the court had the power to adjust the rights of all parties. (Derham v. Lee, 87 N. Y. 599.) That question, however, need not here be determined. The defendant receiver will have the benefit of the new trial where it is to be assumed all his rights will be protected. It is urged by the defendants that the action is not maintainable because it is against Barckley “as Treasurer of Albany County.’’ Those words may be deemed descriptive of his position, and if the cause of action alleged and proved is personal against him, they might be disregarded. (Lehman v. Koch, 30 N. Y. St. Repr. 224; Berford v. Barnes, 45 Hun, 253; Tighe v. Pope, 16 id. 180 ; 1 Ency. of Pl. & Pr. 540.) It is not apparent how the county of Albany would be bound or affected by the judgment. None of its moneys were applicable to this: claim or were in the hands of the treasurer for that purpose. The action was not against the county (County Law, chap. 686, Laws of 1892, § 3), and the use of the' words, “ as Treasurer, etc., is not, we think, necessarily fatal to the action. All concurred. Judgment and orders reversed and á new trial granted, costs to abide the event.