Merritt v. Booklovers' Library , 85 N.Y.S. 797 ( 1903 )

Hooker, J.:

This is an appeal from a judgment of the Municipal Court of the city of Mew York in favor of the defendant William H. M. Cadmus, as receiver of Samuel C. Pulis. The action was commenced by the service of summons upon the defendant the Book-lovers’ Library, to recover for the use of the plaintiff’s horses and wagons for the month of May, 1903. The Booklovers’ Library admitted the rendition of the services and that the amount claimed for the service was due from it, but inasmuch as the defendant Cadmus, as receiver of Samuel 0. Pulis, claimed the fund by reason of his receivership, by consent of the parties it deposited the money in court; Cadmus was substituted as defendant, and the action proceeded between the plaintiff and Cadmus as though the latter had been interpleaded upon the motion of the Booklovers’ Library. The litigation then resolved itself into a contest for the fund so deposited.

It appears undisputed from the record that one Samuel C. Pulis, prior to the 31st day of December, 1902, was conducting a stable and supplying horses and wagons to the Booklovers’ Library, by means of which it might transact part of its business; that the furnishing of these horses was under and pursuant to a contract in writing between Samuel C. Pulis and the library, which specified the rate at which the services were to be paid for. ■ On the 31st day of December, 1902, Samuel C. Pulis transferred his business to Charles H. Pulis, there being a chattel mortgage at the time of the transfer, covering the property, and held by Edwin P. Merritt, this plaintiff. When Charles H. Pulis took possession of the business he gave to the plaintiff a new mortgage for the face of the old one, and, being unable to meet the mortgage on the first of May, surrendered his right, title and interest therein to the plaintiff, in satisfaction of the said mortgage, and at the same time gave to the plaintiff a good and sufficient bill of sale of the business and of the property connected therewith. The bills of sale included within the schedule of property assigned, “ contract for delivery of books on behalf of Booklovers’ Library of Philadelphia.” The plaintiff took possession of the business on the 1st- of May, 1903, and conducted it during that month, and seeks to recover the fund paid into court by the Booklovers’ Library as the assignee of the contract made between the library and Samuel 0. Pulis, and, having rendered the services required to be performed by that contract in a manner satisfactory to the library, he claims to be entitled to payment of the sum paid into court.

On the 16th day of May, 1903, after proceedings supplemental to execution, the defendant Oadmus was appointed receiver of the property of Samuel G. Pulis, and on the twentieth of that month a certified copy of the order appointing him such receiver was served upon [the judgment debtor. . Cadmus claims the fund now in court upon the theory that the contract between the judgment debtor and the library was not assignable, and makes the claim that transfers to Charles H. Pulis and to this plaintiff wer.e in fraud of creditors.

In the memorandum written by the trial justice appears this language: “ There never existed any contractual relation between the plaintiff and the Booklovers’ Library. The contract was between ’S'. 0. Pulis and the Booklovers’ Library. In Beveridge v. N. Y. E. R. Co. (112 N. Y. 1) it is said at page 26, where the plaintiff seeks to base his right to maintain his action against a third party -upon -a contract made between that party and another, it must be one made or intended for his benefit. Such a beneficial intent must-be clearly found in the agreement.’ ”

We think the-view of the justice-before whom the trial was had, as expressed in this language, is not correct, and that he erred in supposing that the Beveridge case is applicable in any manner to the facts presented by this record. The language quoted from that case expresses a principle which has long been incorporated in the body of the law of this State, but the principle has never been understood to apply to cases of contracts which have been assigned to the party who seeks to enforce them. The contract made by the Booklovers’ Library did not require the rendition of services personal in character, and the property of Samuel 0. Pulis in the contract was an assignable one, which passed to the plaintiff prior, to the commencement of this action. The long line of authorities which establish .this principle-in this jurisdiction render it out óf place for us to enter into any discussion of the principle. (Devlin, v. Mayor, 63 N. Y. 8; Field v. Mayor, 6 id. 179; McKee v. Judd, 12 id. 622; Hall v. City of Buffalo, 2 Abb. Ct. App. Dec. 301; Zabriskie v. Smith, 13 N. Y. 322; Rochester Lantern Co. v. Stiles & Parker Press Co., 135 id. 209; Byxbie v. Wood, 24 id. 607; Tugman v. National Steamship Co., 76 id. 207; York v. Conde, 147 id. 486.)

Because the trial justice adopted a view of the law which denied the'plaintiff any right to the fund in controversy, his error in that respect was so prejudicial to the plaintiff as to call for a reversal of the judgment, that upon another trial the evidence may be treated upon a consideration of the true rule in this respect.

The judgment should be reversed and a new trial ordered, costs to abide the event.

Bartlett, Hirschberg and Jenks, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.