Sherman v. Jenkins

HERRICK, J. The assignment to the defendant, on its face, was a valid assignment, The burden, therefore, was on the plaintiff to prove that it was invalid for reasons outside of the record. Hooper v. Baillie, 118 N. Y. 413, 23 N. E. Rep. 569. I have been unable to find anything in the evidence in the case proving, or tending to prove, that the member of the copartnership who signed the instrument of assignment was not authorized to do so by his copartner, as set forth in the acknowledgment. The defendant would therefore lawfully become possessed of all the copartnership property. The olamtiff’s assignor was a member of1 said copartnership. .The property in question was in the possession of, and used by, said copartnership, in the transaction of its business. It must have been so with the knowledge and consent of plaintiff’s assignor; and, as against the creditors of the copartnership, the plaintiff ought not to be permitted to assert the alleged individual ownership of his assignor therein, and that it was not copartnership property. The defendant represents the interests of the creditors of said copartnership. I think the referee erred in the view taken by him of the assignment. He seems, by his 187 qualifications of the defendant’s request to find that the copartnership executed an assignment for the benefit of creditors to the defendant, to have held that it was necessary for the defendant to prove that plaintiff’s assignor executed such assignment, or authorized or consented to his copartner doing it for him. This, as we have already seen, was not incumbent upon the defendant to show. The assignment being valid upon its face, and showing that the person signing it was authorized to sign it, if in fact there were no such consent and authority given, it was for the plaintiff to prove that fact, which he has failed to do. The referee also erred in his holding in regard to the third and fourth counts in defendant’s answer. They had been demurred to by the plaintiff, and the demurrers overruled, and the plaintiff had failed to avail himself of the permission granted to him, of replying to such counts in the answer. The judgment upon the demurrers was of record, and, so remaining on the record, was an admission of the facts set forth in such counts. Cutler v, Wright, 22 N. Y. 472. The third count of said answer alleges that the plaintiff’s assignor and another commenced an action against this defendant and another after said assignment, in which they alleged that plaintiff’s assignor was the owner of the .same property which is in question in this action, and demanded, among other things, that he be so adjudged the owner of said property, and that the defendant therein be directed to deliver the same to plaintiff’s assignor, and that such action was still pending against this defendant at the time of the commencement of this action, and so commenced before the plaintiff claims to have acquired his title to the property in question; that plaintiff procured his alleged title to said property during the pendency of such action, and with full knowledge that it was. pending. The fourth count in said answer alleges that in the action set up in the third count an injunction was granted, enjoining and restraining the defendant from disposing of or interfering with said property, and that the demand made upon defendant by the plaintiff for the property in question herein was made while said injunction or order was in force, and with the knowledge by the plaintiff of the pendency of said action, and of said order. These things so alleged being admitted by the demurrer, as before stated, there was no wrongful detention of the property by the defendant, even admitting that he had no lawful title to it under the assignment; and, as there was. no unlawful taking of the property by the defendant originally, there is nothing, it seems to me, upon which an action of replevin can be sustained. The decision of the special term upon the demurrer, being unreversed, was binding upon the referee, and as to him it was a final decision in the case, as to the question decided by it; and the referee erred in considering it an open question to be passed upon by him. For these errors, judgment should be reversed, the referee discharged, and a new trial granted: costs to abide the event. All concur.