Bixby v. Barklie , 33 N.Y. Sup. Ct. 275 ( 1882 )

Osborn, J.:

This is an appeal from a judgment rendered in favor of the respondents, defendants, Barklie and Coster, upon a referee’s report, and also from a motion denying a new trial to the plaintiff upon the case as made and upon affidavits. This motion for a new trial was made at Special Term before Mr. Justice Landon, and, as we think, -properly denied. The only question to be considered then is, whether the referee made any mistake in his findings of fact or conclusions of law arising therefrom.

From a very careful examination of all the evidence in the case I am convinced that the indebtedness originally secured by note, and afterwards by the different bonds given, with the powers of attorney to Slocum, therein contained, all had reference to the individual indebtedness of Stephanie Barbour; that'the defendants, Francis S. Barklie and Washington A. Coster, had no personal interest therein; that they signed the notes originally, and the bonds, including the bond on which this action is brought, as sureties only, and that this was all the time well known to William Slocum, the plaintiff’s assignor. Stephanie Barbour during all this time had a life interest in the property and estate of another, of which one Walter Livingston was trustee, and from which she was entitled to receive the sum of $8,000 and over annually.

It would seem that her personal and living expenses were extravagantly large, and the object of the bonds, with the power of attorney therein contained, was to secure the indebtedness which existed against her by directing the trustee, Slocum, therein named, to draw from said Livingston one-half of her interest yearly, being the sum of $4,000 or over, and apply the same in payment of her debts, including the debts for which Francis A. Coster and Washington A. Coster were liable as sureties, first, on the notes which they had signed and which subsequently were merged in the bond in suit also signed by them as sureties. True, the bond in suit was not given to Slocum but to one Jenett AI. Clark, but the power of attorney to Slocum to receive this $4,000 annually and apply it to the debts of Stephanie remained in force as well as to this bond as to the original notes which respondents had signed as sureties. Indeed, the notes formed the consideration for the bond. In a word, while the obligee named in the bond was Jenett M. Clark, yet the bond was made up of the original notes signed by the respondents. To secure these, perhaps with other indebtedness of Stephanie, this power of attorney was given. This still remained in full force as a protection to the same sureties who signed the bond. This the referee finds, and there is evidence to support it as well as the fact that all this was well known to all the parties concerned.

Now, while this was the state of affairs, and in 1872, Airs. Barbour and her husband revoked, and Slocum consented thereto without the knowledge or consent of Barklie and Coster, this power of attorney, and from that1 time onward Slocum did nothing under such power of attorney and no money whatever was paid to the relief of the sureties.

After the revocation of the power of attorney and the giving up by Slocum of the trust and the surrender, of the security he held, he (Slocum) by assignment from the Clarks became the owner of this bond in suit. He subsequently assigned to the plaintiff. I think it clear that the plaintiff took the assignment from Slocum, charged with all the equities and defenses which existed in favor of the sureties against Slocum, if he had commenced an action on this bond and mortgage to recover during the time he held this bond. (Trustees, etc., v. Wheeler, 61 N. Y., 88; Davis v. Bechstein, 69 id., 440; see, also, opinion of the referee on that point.) The Clarks possibly could have recovered against the sureties on the bond, if the action had been brought by them, assuming the surrender and revocation were given up-and surrendered without their assent. When Slocum took an assignment thereof he then stood in the same position as he would if. the bond had not been given to him.

If such had been the case would • it not be clear that Slocum’s consent to a revocation of the power of attorney, his abandonment of his trusteeship and surrender of the security he held- for the benefit of the sureties, would have prevented his recovery? It seems to us most clearly so. The security by Slocum would have operated to their discharge. It was an instrument of such a nature that he could not surrender it. He held it as well for the benefit of the sureties as the obligee named in the bond, and he could not destroy it without the consent of the parties (sureties) for whose benefit it was given. ¥e find evidence sufficient to sustain such findings.

We think the action of Slocum operated to release the sureties to this bond so far at least as he had, or by the assignment to him afterwards, became interested in the same, and that the plaintiff acquired no other or greater interest or right than Slocum could enforce.

In this view it becomes unnecessary to examine the legal conclusion at which the referee arrived, that the action of Slocum created-a claim for damages by the sureties against him, and therefore could be set up by way of counter-claim to the cause of action alleged in the complaint.

The judgment and order appealed from must be affirmed, with costs.

Rumsey, J., concurred.