Opinion
March 10, 1911.
Benjamin N. Cardozo, for the appellant.
Harry Eckhard, for the respondent.
The appellant contends that the respondent Gimbernat is not entitled to the fund in any event; that the other defendants, not having appealed, are concluded by the former adjudication that the assignments to Bell were valid (citing St. John v. Andrews Institute, 192 N.Y. 382), wherefore the former appeal was futile; that, even if the appellant cannot rely upon the former adjudication as against the only parties really interested in the fund, still the court will not order a fund to be paid to one party, with knowledge that others, not before the court, hold assignments of it, wherefore the court will at least direct that the other defendants be again brought into the action; and that the appellant has the right to raise the point for the reason that in equity, if the subsequent assignees attack his assignment, he can at least insist, as between him and them, on the payment of the principal sum loaned, with legal interest; that he has a right to insist that the attack upon his assignments shall come from those really interested in the fund in view of the fact that the relief awarded in such case will be more favorable to him.
The argument is ingenious, and it was pressed with earnestness and marked ability by the learned counsel for the appellant. The vice of it is in the assumption that the respondent Gimbernat has no such interest in the controversy as entitles him to be heard. We may lay to one side the assignment to Banes and the claims of alleged judgment creditors. Banes was made a party to the action and had an opportunity to assert his interest in the fund, if he had any. It is unnecessary to summon him in again. The former judgment adjudged that the alleged judgment creditors had no interest in the fund, and that part of the judgment stands unreversed. There remain only the two assignments to Clara L. Gimbernat, aggregating $7,500. But they were not absolute assignments. Undoubtedly if they were they would operate pro tanto to pass legal title to the fund. But they were made as security for a debt, and an assignment of a chose in action, or of an interest therein, as security for the payment of a debt, is a mere pledge. The assignor still retains an interest which he can assert in a suit. ( Lang v. Eagle Fire Co., 12 App. Div. 39; Simson v. Satterlee, 64 N.Y. 657; Peck v. Yorks, 75 id. 421.) Even if it be granted, as the appellant assumes, that the defendant Clara L. Gimbernat has the legal title to $7,500 of the fund, still the respondent would have an equitable interest which would entitle him to be heard. If, as between him and the appellant, the latter's assignments are void, he has a right to insist that the fund shall be applied to the payment of his debt to the defendant Clara L. Gimbernat, and that he have what remains. The appellant is, therefore, not interested in the distribution of the fund among the other defendants.
While the appellant has no interest in the question, his appeal calls our attention to the fact that the judgment directs the payment of money out of court in disregard of the provisions of the prior judgment, which stand unreversed. We have held that the defendant Jules Gimbernat had a right to appeal from the former judgment for the purpose, if for no other, of insisting that the fund be applied in payment of his debt to the defendant Clara L. Gimbernat. As between him and her, the former judgment established the validity of her assignments, and he did not appeal from that part of the judgment. She might rest, as she did, upon that adjudication and leave it to him to contest the validity of the prior assignments to Bell. When those assignments were adjudged void, she became entitled to $7,500 of the fund perforce of the former judgment. Thus the case is plainly distinguishable from St. John v. Andrews Institute ( supra). If this judgment stands unmodified, there will be two inconsistent judgments in the same action, one adjudging that Clara L. Gimbernat holds valid assignments of $7,500 of the fund in court, the other directing the payment of all but $1,000 of the fund to Jules Gimbernat. Shall the court knowingly direct the payment of money in its custody to a person not entitled to it merely because the person adjudged to be entitled to it has not remained in the action to see that that adjudication is respected? We think that this court has inherent jurisdiction on its own motion, the case being now in this court and the matter having been called to our attention, to do what the Special Term would doubtless have done in the first instance if the provisions of the former judgment had been called to its attention, i.e., to conform the present judgment to the former judgment, so far as it was unreversed.
Of course, it may be that the said Clara L. Gimbernat has ceased to have any interest in the matter. But, at any rate, the court will not be in the position of directing two inconsistent judgment in the same action, and of decreeing the payment of a fund in its custody to a person not entitled to it upon the record.
The judgment should be modified so as to conform to the provisions of the former judgment not reversed, and to provide for the payment to the defendant Clara L. Gimbernat of the amount of her assignments with such interest as has been earned on the fund in the hands of the chamberlain, and to the respondent Jules Gimbernat of the balance of said sum of $11,000 with like interest, and as thus modified the judgment should be affirmed, with costs to the respondent.
INGRAHAM, P.J., McLAUGHLIN and SCOTT, JJ., concurred.
I concur with Mr. Justice MILLER, except as to modification, which, not being involved in the appeal, I think is not authorized and should be left to an application at Special Term. (See Waldo v. Schmidt, 200 N.Y. 199.)
Judgment modified as directed in opinion, and as modified affirmed, with costs to respondent. Settle order on notice.