Firemen's Mutual Benevolent Ass'n v. Clifford

Laughlin, J.: This is an action in replevin to recover bonds. The complaint shows that the plaintiff is a domestic corporation and the defendant is an attorney and counselor, and resides and' has an office in the borough of Brooklyn, New York city; that the plaintiff is the owner and entitled to the immediate possession of the bonds, which are described by their issues and numbers, but that defendant has obtained possession thereof and wrongfully detains them, although [316] demand therefor was duly made before the commencement of the action. Judgment is demanded for the possession of the bonds, and for their value if possession cannot be delivered. The answer joins issue on the allegations with respect to the plaintiff’s ownership and defendant’s possession of the bonds, and pleads six separate defenses. The first is the pendency of a prior action between the parties for the same cause; the second is that the cause of action did not accrue within one year prior to the commencement of the action; the third is that the defendant has been released and discharged from liability; the fourth is that the plaintiff duly assigned, transferred and delivered the bonds and parted with all interest therein to the defendant, who thereupon became and was the owner thereof; the fifth is that in or about the year 1900 the plaintiff employed the defendant in certain professional, executive and administrative capacities and agreed to pay him therefor a stipulated sum of money monthly; and that the contract was renewed annually; and that he duly performed the services; and, in effect, that the bonds were delivered by plaintiff and accepted by defendant in payment for services rendered pursuant to and in connection with said contract of employment; and in the sixth defense the defendant pleads the contract of employment set up in the fifth defense, and alleges that the plaintiff delivered the bonds to the defendant in consideration of his surrendering his rights under the contract and the renewals thereof. On the pleadings and on affidavits made by the president of the plaintiff, its attorney and a deputy sheriff, the plaintiff moved under section 717 of the Code of Civil Procedure for an order requiring defendant to deliver the bonds to the clerk of the court, subject to the further direction of the court. The affidavit of the plaintiff’s president is to the effect that one Sullivan, who was chairman of the board of directors of the plaintiff and an old friend of the defendant, delivered the bonds to the defendant; that Sullivan was later dismissed from his office, and, in turning over the property of the plaintiff to his successor, instead of delivering the bonds, he delivered a receipt therefor from the board of directors of the plaintiff, signed by defendant under date of July 22, 1919, providing that he was to hold them in escrow pursuant to a resolution of said board of directors “ to see that the contract is kept by the association.” The affidavit further shows that the bonds belonged to the plaintiff, and that defendant has refused to return them, and is an old man of no financial responsibility; and that on account of his age the officers of the plaintiff are unwilling to apply for an order of arrest; and that he may dispose of the bonds pending the action; that plaintiff is financially responsible and has filed a bond [317] with the sheriff of Kings county for twice the value of the bonds; and that defendant was president of the plaintiff, but was defeated for re-election on or about the 9th of July, 1919, and thereafter through connivance with Sullivan obtained possession of the bonds, which prior thereto were purchased with funds of the plaintiff. The affidavit of the plaintiff’s attorney was made for the purpose of obtaining an order to show cause with a stay and is not material to the appeal. The affidavit of the deputy sheriff of Kings county is to the effect that, pursuant to the direction in the writ of replevin issued herein, he called on defendant and demanded the bonds, and defendant stated that he did not have them with him, and declined to state where they were. The defendant presented his affidavit in opposition to the motion, in which, so far as it is material to the appeal, he denies the deputy sheriff’s version of the interview with him and avers that he informed the deputy that he had not had the bonds for some time, and further avers that he had disposed of the bonds prior to the commencement of the action; that there is pending another action against the defendant brought by one Gleason, evidently an officer of and in behalf of the plaintiff, to enjoin defendant from disposing of the bonds and to require him to return them, and to require him and other former officers of the plaintiff to account for their official acts; and that in the complaint in that action the nature of the contract referred to in said receipt is alleged to have been an agreement made by plaintiff on or about the 17th of November, 1900, to pay defendant annually for life an amount equal to the salary of a captain in the fire department of the city of New York; and that it was provided that the agreement should inure to the benefit of the defendant’s heirs. These are the only material facts shown, and thereon the court granted the motion. I am of opinion that the court was without authority to make the order. It clearly appears that there was some contract made between the plaintiff or its board of directors and the defendant, and the receipt for the bonds given by defendant shows that he received them and held them originally as security for the performance of that contract. There is no evidence on behalf of the plaintiff that it performed the contract and became entitled thereunder to the return of the bonds; and the position taken by the defendant in his answer is that the contract was canceled by mutual consent, and that in consideration of the surrender of his rights under the contract the plaintiff relinquished its interest in the bonds and he became the owner thereof in his own right and has parted with both title and possession. If the plaintiff claimed that the defendant had control and possession of the bonds when the demand was [318] made therefor by the deputy sheriff under the writ of replevin, its remedy was to apply for an order of arrest under section 549, subdivision 2, of the Code of Civil Procedure, now subdivision 7 of section 826 of the Civil Practice Act, or to apply to the court for an order requiring him to deliver the property to the deputy sheriff and to have him punished for contempt if without good cause he failed so to do. The plaintiff, however, instead of pursuing either of these remedies, sought and obtained the order requiring the defendant to deliver the bonds to the clerk of the court, which was a remedy then provided for in section 717 of the Code of Civil Procedure, now in section 978 of the Civil Practice Act, where a party admits that he has in his possession or under his control money or other personal property capable of delivery, which is the subject of the action or special proceeding and is held by him as trustee for another party, or which belongs or is due to another party. It is perfectly clear, I think, that the plaintiff was not entitled to that remedy on these facts, for it is neither admitted by the pleadings nor by any examination of the defendant nor by his affidavit that the bonds were in his possession or under his control, or that he held them as trustee for another party, or that he held them and they belonged or were due to another party. It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. Dowling, Smith and Greenbaum, JJ., concur; Merrell, J., dissents.