Bartlett v. Wilbur

Robinson, J., delivered the opinion of the Court. In January, 1876, the appellee Wilbur sued out an attachment against “The Illuminated Tile Company,” and laid it in the hands of the appellants as garnishees. The garnishees appeared, and pleaded non assumpsit on behalf of the Tile Company and nulla bona on their behalf. In November following, the defendant corporation appeared by its attorney, and confessed judgment for $18,982.95. The garnishees subsequently filed an additional plea, alleging that in October, 1876, a receiver had heen appointed by the Supreme Court of New York for said corporation, and thereby the indebtedness of the garnishees to the Company was transferred and became an indebtedness to the said receiver. To this plea, the plaintiff demurred, and the Court below sustained the demurrer. Strictly speaking the powers and functions of a receiver for the purposes of litigation are limited to the Courts of the State within which he was appointed; and he has no extra-territorial jurisdiction or power to institute suits in another State for the recovery of property due the person or estate subject to the receivership. — 495 — In Booth vs. Clarke, 17 How., 322, referring to the powers of a receiver, the Supreme Court say: “ He has no extra-territorial power of official action; none which the Court appointing him can confer with authority to take possession of the debtor’s property; none which can give him upon the principle of comity a privilege to sue in a foreign Court or another jurisdiction.” In some States it is true, he has been permitted upon the principle of comity to file claims and receive money due the estate, hut he has never been allowed by a foreign Court to interfere with its jurisdiction, which had attached prior to his appointment. Here the proceedings in attachment were instituted long prior to the appointment of a receiver, and the demurrer was therefore properly sustained. The first exception presents a question in regard to the admissibility of secondary evidence. The plaintiff by contract in writing had agreed to furnish the appellants with a certain quantity of “illuminated tiling,” to he used in the construction of public buildings in New York City. This contract he testified had been assigned by him to the Tile Company, and that t^ie assignment was at one time in his possession, hut “ he could not find it, although he had made search for it.” It was then proposed to offer in evidence a paper purporting to he a copy of the original assignment, to which the defendants objected. To lay the foundation for secondary evidence it was necessary to prove that he had made a diligent and unsuccessful search for the original paper in the place or places where it was most likely to he found. The degree of diligence necessary, it may not he easy to define, as each case must in a measure depend on its own peculiar circumstances. As a general rule, however, it must appear that the party has in good faith exhausted in a reasonable degree, all the sources of information and means of discovery, which were accessible to him, and which the nature of the case would naturally suggest. — 496 — If the instrument he one of importance, and such as the owner had a direct interest in preserving, greater diligence should he required than in cases where the paper is of little or no value, in the preservation of which, one is not expected to exercise such care. In this case the indebtedness of the Tile Company' to the plaintiff, and the indebtedness of the garnishees to the Company, was founded upon this assignment, and it was therefore a paper of the utmost importance to the plaintiff as well as to the Company. Under such circumstances as these, merely saying “that he had searched for it and could not find it,” without stating whether the search was made in such places as it was usually kept, and without-stating the degree of diligence used in making the search, was not sufficient in our opinion to lay the foundation for the admission of secondary evidence. Such preliminary proof did not show that he had made a diligent search and had reasonably exhausted all the sources of information ordinarily accessible to him. It was argued, however, even conceding the Court erred in this respect, no injury was done to the garnishees, because the record shows they recognized the validity of the assignment, and upon the faith of it dealt with the Tile Company as assignee under it. This was sufficient it is true, to prove the relation of debtor and creditor between the garnishees and the Company for materials furnished by the latter after the assignment. But the copy of the assignment offered in evidence goes further than this, and transfers to the Company not only the assignor’s right under the Bartlett contract to furnish the tiling, hut also all indebtedness due to him under the contract for tiling furnished prior to the assignment. This involved the nature, character and terms of the assignment itself, and to prove these if was necessary to offer in evidence either the assignment itself, or if it was lost or could not he found, to prove its contents by secondary evidence. — 497 — In the second exception, the plaintiff offered in evidence the answer of the garnishees filed in a suit by the New York Belting and Packing Company, in which they admitted notice of the assignment of the Bartlett contract by the plaintiff to the Tile Company. Their answer was clearly admissible, for the purpose of proving such notice, and there was no error in the ruling of the Court in this exception. The Court was also right in sustaining the objection to the question asked the witness in the third exception. The judgment confessed bj the Tile Company in favor of the plaintiff, was an admission of its indebtedness to him, and in an attachment by the latter against the appellants as garnishees of the judgment debtor, the question of indebtedness by the Company to the plaintiff was no longer an open question. The judgment was conclusive as to this matter, and under the plea of nulla tona, the sole issue before the jury was, whether the appellants had anything in their hands as debtors to the Tile Company, liable to garnishment. In the fourth exception the garnishees offered in evidence a paper purporting to be an affidavit, made by the plaintiff in New York City, on February 9th, 1875, before one “Michael C. Gross, justice, &c.,” and this the Court permitted to go to the jury for the purpose only of contradicting the testimony of the plaintiff. The garnishees have no reason to complain of this ruling, because it was inadmissible for any purpose. The affidavit upon its face, appears to have been made in a judicial proceeding of some kind, but it is not authenticated by the seal of the Court, nor is there anything to show the official character of the person before whom it was made. If admissible, however, at all, we agree with the appellants that the Court erred in ruling it could be offered only for the purpose of contradicting the testimony of the plaintiff. There is a wide difference between the declarations of an ordinary loitness, a stranger to the suit, and the declarations of a — 498 — party to the record. The former are admissible only for the purpose of impeaching or contradicting the witness, hut the latter being the admissions of the party to the suit may he offered to prove the truth of the matters thus admitted. 1 Greenleaf’s Evid., sec. 171. The fifth exception will he considered in connection with the several instructions offered by the appellants. The New York statute, under which the Tile Company claims to have been incorporated, provides that the certificate of incorporation shall he filed in “ the clerk’s office of the county in which the business of the company shall he carried on, and a duplicate thereof in the office of the Secretary of State.” It does not appear from the copy of incorporation offered in evidence, that a duplicate of the certificate was filed in the office of the Secretary of State, and the garnishees contend therefore, there was no evidence of the Company’s incorporation. The statute, however, further provides, that the copy of any certificate of incorporation “ filed in pursuance of this Act, certified by the county clerk or his deputy, to he a true copy, shall he received in all Courts and places as presumptive legal evidence of the facts therein stated.” It is clear then that the certificate offered in this case would have been evidence of the existence ’of the corporation in the Courts of New York; and if so, it is well settled that the certificate thus duly certified will he received in the Courts of another State to prove the fact of such incorporation. Angell & Ames on Corporations, sec. 635, and cases cited. Moreover, the garnishees recognized, dealt with, accepted and paid drafts drawn by the Tile Company after its incorporation, and it may he well questioned whether under such circumstances it was competent for them to deny the corporate existence of the Company, in a suit by an attaching creditor, against them as debtors to the Company. — 499 — In considering the fifth and sixth prayers it will he necessary to refer briefly to the evidence upon which they are based. The appellee, Wilbur, claims to have assigned the Bartlett contract to the Tile Company, in February, 1875, and that subsequent thereto the tiling was furnished by the Company to the garnishees. These prayers are based upon the theory that prior to the above assignment, the appellee had in fact assigned the contract to one D. W. Bain, and the garnishees were therefore indebted to Bain for the tiling furnished by him, and not to the Tile Company, unless there was a re-assignment of the contract by Bain. There was evidence tending to prove the facts upon which these prayers are founded, and this evidence ought to have been submitted to the finding of the jury. In the first place, the plaintiff, Wilbur, admits that he had assigned the Bartlett contract to Bain, although he says at the same time that it was re-assigned by him. In addition to this, T. M. Lockwood, attorney-at-law, testifies that he prepared, the paper purporting to he an affidavit by the plaintiff, before Michael C. Gross, justice, and which was offered in evidence in the fourth hill of exceptions, and that the plaintiff admitted in his presence the truth of the facts therein stated. Now the plaintiff in this paper admits that he assigned the Bartlett contract to Bain in August, 1874, nearly six months prior to the assignment of the same contract to the Tile Company; that he had no interest whatever in the contract, and was merely employed by Bain to do the work at one hundred dollars per month. These admissions were made on the 9th of February, 1875, nine days before the assignment under which the Tile Company claims. Now, although the paper itself was not admissible in evidence as an affidavit of the plaintiff, because it was not duly authenticated, yet it was competent for the appellants to prove by — 500 — the witness Loclcwood, that the plaintiff admitted in his presence the facts stated in the affidavit. Here then is evidence, without meaning to intimate any opinion in regard to the weight of it, tending to prove not only a prior assignment to Bain, hut also that materials were furnished hy him under it. Whether the assignment to Bain was made in good faith, or merely for the purpose of defrauding the plaintiff’s creditors, hy concealing his interest under it, were questions for the jury. It is true there is no evidence that the appellants had notice of this alleged assignment to Bain, or recognized in any manner his rights under it. But it must he borne in mind, that the plaintiff is seeking to recover hy his attachment against the appellants, as garnishees of the Tile Company, not only for materials furnished hy the company to the garnishees after the date of its assignment of the Bartlett contract, hut also for materials furnished prior thereto, the indebtedness for which by the garnishees, the plaintiff claims passed to the company under its assignment. If the Bartlett contract, was in point of fact, assigned to Bain, prior to the assignment by the plaintiff to the Tile Company, it is clear the garnishees could not be indebted to the company for the materials furnished by Bain, unless his interest under it was re-assigned. And these were questions for the j ury. The finding of these facts was submitted by the sixth prayer, and it ought therefore to have been granted. And for the same reasons, the evidence offered in the fifth exception ought to have been admitted. The fifth prayer, however, did not submit to the jury the question of re-assignment, and there was no error therefore, in refusing to grant it. The eighth prayer presents a jurisdictional question. The following is a copy of the account annexed to the affidavit upon which the attachment was issued: — 501 — “ The Illuminated Tile Company, To James M. Wilbur, Dr. To the following materials, labor, services, &c. furnished in connection with work done on the New York Post Office, from August 11, 18*74, to February 2*7, 18*75 : Glass.......’....................................$ 4,08*7.99 Iron.......................................... 8,595.35 Rubber........................................ 3,4*76.10 Paints....................................... 336.43 Labor................... 5,861.0*7 ■ His salary superintending and designing work 12 months, at $300 per month................................ 3,600.00 $25,956.94 Art. 10, Sec. 4, of the Code provides, that the creditor at the time of making the affidavit, shall produce the bond, account or other evidence of debt; and it is contended that the above account is defective, because the precise quantities of glass, rubber, iron, &c., are not itemized. The amount due for each of the items is set forth, and the building for which they were furnished is specifically referred to, and the time during which the appellee was employed in doing and in superintending the work is stated. It was necessary of course to prove at the trial, the precise quantity of each of the articles charged in the account, but this it was not necessarj to state in the account, annexed to the affidavit upon which the attachment was issued. Before proceeding to trial, the garnishees had the right to demand a bill of particulars, and in a case like the present, where the building is referred to, the garnishees were in no manner injured by the failure to state the precise quantity of each of the materials used in its construction. As we have said, in a former part of this opinion, the confession of judgment by the Tile .Company, was conclu — 502 — sive as to the question of its indebtedness to the plaintiff, and the Court was right in instructing the jury that it was no longer an issue between the parties. (Decided 31st March, 1880.) Nor was there any error in overruling the motion to strike out this judgment. It was regularly confessed by the attorney of the Company, and we find nothing in the record upon which such a motion can he sustained. Eor errors, however, in the first and fifth exceptions, and for refusing to grant the sixth prayer of the appellants, the judgment must be reversed and new trial awarded. Judgment reversed, and new trial awarded.