Depew v. Leal , 2 Abb. Pr. 131 ( 1855 )

HoffmaN, J.

We do not consider the points of the defendant, as to the omission of the word best in the affidavit, applicable to his knowledge and information, nor as to the valuation of the property, well taken.

The point as to the sufficiency of the affidavit upon its merits, presents the material question:—

1. The action is one of claim and delivery of goods. The plaintiff, as to certain parcels of the property worth $500, swears distinctly to an absolute ownership; and so far his proceedings are unobjectionable. A question might arise whether, if the affidavit is insufficient as to the other parcels of property and cannot be remedied, the whole must fall or be sustained in part. This question will not, however, arise if the amendment suggested may be allowed.

The affidavit as to the other parcels states, that “ the deponent is entitled to the immediate possession of seventeen barrels of India rubber, &c., that he is entitled to the possession of the property of which he has as above claimed the possession, under and by virtue of written articles of copartnership between him and said Leal, which copartnership existed before and was dissolved on the thirtieth day of December, 1854; that such property, of which the defendant claims to be entitled to immediate possession, belonged to, or was consigned to, said copartnership, of Depew and Leal, formed by said articles of copartnership, and by said articles on the dissolution thereof, this deponent was, and is, entitled to the possession of all the property, books and assets of said copartnership.”

It is plain that the case falls within the last clause of the first subdivision of section 207. The plaintiff is to show in his affidavit that he is lawfully entitled to the possession of the goods claimed by virtue of a special property thereinIn such a case, the facts in respect to such special property and right of possession must be set forth.

We understand the phrase of the affidavit, “that the property belonged to, or was consigned to said copartnership,” to mean that some of the goods were owned, and some consigned, and that he cannot discriminate between the parcels. This is somewhat indefinite, although we do not consider it a fatal defect.

The substance of the affidavit is that the plaintiff is entitled as against his copartner to the exclusive possession of the property, by virtue of the articles of partnership between them, upon the dissolution which has taken place. It is obvious that the plaintiff then adjudges for himself that the articles do contain sucli an authority. We consider that this does not meet the requirement of the section. The facts should be so shown, as that the court can say, upon these facts, and the best apparent evidence of these facts, that a special property and right of possession is made out. If it appears that the evidence of the facts rests in a writing, that must be set forth as the true basis of the conclusion. The substituted conclusion of the plaintiff himself will not do.

The cases of Fairbanks v. Bloomfield, (2 Duer, 349), and of Gibson v. Levy, (Ibid., 176), although cases of the sufficiency of a pleading, contain the principle which we think should govern the present case.

2. The plaintiff now asks for liberty to file an amended or supplemental affidavit, chiefly to set out the articles of copartnership, and to explain how the property came into the hands of the firm, more fully to show the nature of the special property. The Judge at Special Term gave permission to produce upon the hearing of the appeal any papers which could have been legally read on the motion. The articles, and the affidavit so far as it authenticates the articles, and as it details the mode and circumstances under which the property was received and held, would have been properly at Special Term as the foundation of such an application as is now made.

We have examined the cases referred to upon the right of the Court to allow an amendment of, or an addition to, the affidavit in such an action. (Spalding v. Spalding, 3 How. Pr. R., 297; Stacy v. Farnham, 2 Ib., 26; Cutler v. Rathbone, 1 Hill, 204; Harnley v. Bates, 19 Wend., 632). We are satisfied that the Court has such a power; and also that the proposed additional affidavit may be used in opposing the motion to set aside the proceedings. (Chickman v. Chickman, 3 How., 365). This power may be properly exercised in a case where what is to be supplied is an instrument referred to in the original affidavit, and matters purely explanatory of the facts therein stated, introducing no new substantive matter. The copy of the articles, and an affidavit in place of the one tendered on the argument, setting forth the details as to ownership and consignment of the goods, may be annexed to the original affidavit and filed with the sheriff, with a copy of the order to be entered herein.

III. Assuming that the articles of partnership are before the Court, the question which arises upon them is this: Whether their operation is such as to vest in the plaintiff a special property under which he is entitled to the possession. The plaintiff and defendant, while partners, had a mutual and co-equal possession and title. By the articles of partnership “ it is expressly agreed, that at the expiration of one year, or other sooner or later termination and dissolution of the connection in business between the parties, the said Depew alone shall have and be entitled to the possession of the assets and property of said business and of the copartnership hereby created for the purpose of settling the debts and liabilities of the parties hereto in such business, and shall have the sole right to settle that business.”

We consider that this is an absolute relinquishment of all right of possession, which the other partner, the defendant, had to the property, and a transfer of it, and of the legal title to it exclusively to the plaintiff. The object for which it was given, viz. the payment of the debts, cannot qualify this transfer. The defendant had still such an interest in the property as would have warranted his interference to prevent a misappropriation ; but it was essential for carrying out the intent that the plaintiff should settle up all the business, to give him an unqualified right of possession and disposition. We consider that the case is fairly within the language of the Code; that the plaintiff did acquire a special property in the goods of which the firm was not the absolute owners, and thus was lawfully entitled to the possession — as to the other articles, he became by force of the same instrument, the owner within the section referred to. The order -will be that the plaintiff have liberty to add a supplemental affidavit, and annex it to the original, setting forth a copy of the articles of copartnership, and also substantially the statements as to the possession of the property contained in the affidavit submitted, such affidavit to be submitted to one of the judges, and upon the same being done, that an order be entered dismissing the appeal, but with ten dollars costs of the motion to the defendant.^*

* In the above suit, the defendant having only appeared conditionally for the purposes of the motion, the plaintiff, having previously paid the costs and furnished the supplemental affidavit ordered by the general term, after the expiration of the twenty days, applied, without notice to the defendant, to Mr. Justice Bosworth, at special term, for final judgment by default. He urged, that as by the default of defendant, all the facts alleged in the complaint were admitted, he had a right to judgment without either a reference or a writ of inquiry. Mr. Justice Bosworth, after consulting with Mr. Justice Duer, held that there should either be a reference or writ of inquiry, or the court should itself take proof of the facts stated in the complaint. The plaintiff then, before Justice Bosworth, offered a witness, and proved the statements of the complaint, and his honor made his decision in writing, reciting that the Court had taken proof of the facts, and directing the clerk to enter the usual judgment in replevin. This was done, and the whole action was at an end.

Subsequently, in the Supreme Court, in the case of Gale a. Rubbins and Hertz, which was an action to recover possession of a piano forte, the summons being served on Hertz only, from whom the sheriff took the piano; the plaintiff, after the lapse of twenty days, applied before Justice Mitchell for a separate judgment against Hertz. The judgment was rendered without either reference or writ of inquiry; Mr. Justice Mitchell taking testimony enough to make out a prima facie case for the plaintiff, and ordering judgment against the defendant Hertz, which was thereupon entered.

In neither of these cases, as we Are informed, was the complaint served with the summons and copy of the affidavit and undertaking.

The advantages of pursuing the course above indicated, are the saving of referees’ and jurors’ fees, and what is often still more important, the saving of the time required by a reference or writ of inquiry.