Opinion
April Term, 1901.
Joseph E. Bullen, for the appellant.
Ralph S. Rounds, for the respondents.
The only question arising upon this appeal is whether the complaint states a cause of action. The appellant concedes, for the purposes of the appeal, that if it does, the temporary injunction was properly granted. He insists, however, that this action, though brought on the theory of a judgment creditor's bill, is not maintainable; and in that connection our attention is called to sections 1871-1879 of the Code of Civil Procedure, specifying particular creditors' actions which may be maintained, and to certain decisions where actions in aid of the lien of a judgment creditor's execution have been allowed when the purpose sought was to set aside fraudulent conveyances and assignments made by the judgment debtor which prevented the lien of the plaintiff's execution from attaching to property belonging to the judgment debtor. The logical conclusion to be drawn from this reasoning is that all other actions in equity are improperly brought. The error that lies at the root of this argument, however, is the assumption that a judgment creditor's action in aid of an execution must be expressly authorized by some provision of the Code of Civil Procedure or else must be one wherein there has been a fraudulent conveyance or assignment.
We do not deem it necessary to go over the ground and point out, as has been done in many cases, that the jurisdiction of a court of equity is not circumscribed, exactly defined nor entirely limited by the provisions of the Code of Civil Procedure, and that there are actions which a court of equity may entertain outside of those provided for in the Code. Thus in Koechl v. Leibinger Oehm Brewing Co. ( 26 App. Div. 579) it is said: "This view proceeds upon the theory that by the provision of the Code of Civil Procedure (Art. 1, tit. 4, chap. 15) no such action is authorized. This may be conceded. The answer is, however, that this is not an action under the Code. The claim here presented upon the part of the defendant is completely answered by the decision in Easton Nat. Bank v. Buffalo Chemical Works (48 Hun, 557, 561). That action, like this, was to remove an impediment which prevented plaintiff's judgments from becoming liens; and it was observed by Mr. Justice DANIELS, after showing that the provisions of the Code upon which the defendants rely had no application, that the action `depends wholly upon the established rules of courts of equity.'" (See, also, Home Bank v. Brewster Co., 15 App. Div. 338; First Nat. Bank of Oswego v. Dunn, 97 N.Y. 149.)
In this latter case the sheriff had seized the goods in question under a writ of replevin, and thereafter a judgment creditor caused the sheriff to levy upon them under an execution, and it was held that an order staying proceedings upon the execution pending judgment in the replevin action was properly made. Although, as correctly stated by the appellant, that was the precise point decided, the court used the following language which is supported by numerous authorities: "The creditor in the present case must pursue a remedy consistent with the sheriff's duty under the replevin and with the hold which the law has upon the property. The issue of his execution gave him a general lien against the property of his debtor. He meets with an obstruction to his levy. We see no reason why he may not proceed in equity, making all the rival claimants parties."
If further authority were needed for the proposition that equity has jurisdiction in proper actions other than those provided for in the Code of Civil Procedure, and that such jurisdiction is not limited solely to actions where the purpose sought is to set aside fraudulent transfers and assignments, it will be found in the discussion of the cases cited in Creteau v. Foote Thorne Glass Co. ( 54 App. Div. 168), where, in speaking of an action brought by a judgment creditor in aid of an execution then outstanding to remove some obstruction in the way of the execution, it is said: "Such an action can be maintained where an execution is outstanding against a corporation and where the corporation by assignments or transfers of its property has placed an obstacle in the way of the creditor enforcing the execution, and is not governed by the provisions of the Code relating to judgment creditors' actions."
It is true that, in most of the cases referred to, the obstacle interposed was a fraudulent conveyance, transfer or assignment; and from this the argument is made that the only actions outside the Code of which equity will take jurisdiction are those in which a question of fraud is involved. This contention, however, overlooks the fact that the actions themselves were in aid of the executions and for the purpose of removing some inequitable obstruction to their enforcement, and that it was a mere incident to such actions that the inequitable obstruction which appeared was caused by some fraudulent act. There is nothing in the authorities, nor can there be in reason, which would confine the exercise of the powers of a court of equity to instances where the inequitable obstacle interposed results from some fraudulent act. What equity is concerned with in such an action is the removal of the illegal or inequitable obstruction, however caused.
The present action is one brought by a creditor in aid of an execution outstanding, and the only distinction to be made between this and many of the cases mentioned in Creteau v. Foote Thorne Glass Co. ( supra) lies in the fact that there the impediment was interposed by the action of a corporation or some of its officers, while here it is created by a third person, Mr. Hopper, who, having obtained judgments and executions, has seized the property of the corporation and proposes, as the result of indemnifying the sheriff, to have him apply the property or its proceeds to the payment of the judgments which have thus been obtained, not against the corporation, but against the individual, Henry P. Robinson. In other words, when the plaintiffs' executions against the company were issued, they found all the property of the corporation in the hands of the sheriff who has seized and holds the same and who, by reason of the indemnity given by section 658 of the Code of Civil Procedure, was compelled to seize and hold it as the property of Robinson under an inconsistent writ and who refuses (as obliged as the result of indemnifying him) to recognize the liens which, under their executions the plaintiffs would otherwise obtain. Thus the plaintiffs' executions and liens are unenforcible at law by reason of the act of Mr. Hopper in giving the statutory indemnity to the sheriff; and the purpose of this action is to obtain the aid of a court of equity to set aside this illegal obstruction and thereby enable the plaintiffs to protect and enforce their executions and liens.
We have used the words "illegal obstruction" advisedly, for, though the question will be finally determined in this action as to whether the obstruction interposed was illegal, we are obliged, taking the allegations of the complaint as true, to assume that the property seized and now held by the sheriff under the warrants against Robinson, was and is the sole property of the plaintiffs' debtor, the Hoagland Robinson Company. In conceding that the plaintiffs are entitled to an injunction if a cause of action is stated in the complaint, the defendants, in effect, have taken the attitude of interposing a demurrer; and for the purposes of this discussion we must assume that the facts stated in such complaint are true.
We think that the complaint states a good cause of action which is maintainable in equity as one in aid of an execution which is outstanding and which under the circumstances is rendered abortive and ineffectual by reason of the illegal obstruction which has been interposed by the defendants to the enforcement of the liens which the plaintiffs are entitled to have under their executions as against the property of the corporation. The order, accordingly, should be affirmed, with ten dollars costs and disbursements.
VAN BRUNT, P.J., RUMSEY, INGRAHAM and HATCH, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.