Frank Sgobel and Horace W. Day, Respondents, v. Filippo Cappadonia and E. L. Goodsell Company (Limited), Appellants

Frank Sgobel and Horace W. Day, Respondents, v. Filippo Cappadonia and E. L. Goodsell Company (Limited), Appellants. Subrogation to the government lien for customs duties, by their payment. Where, under an agreement that he shall have a lien upon the fruit for the amount so advanced, a party furnishes money to pay the customs duties upon certain lemons, he is entitled to be subrogated to the lien of the government for such duties, and to enforce the same by action. Appeal by the defendants, Filippo Cappadonia and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of June, 1896, continuing an injunction pendente lite granted upon the issuance of an order to show cause. The action was brought to restrain the defendants from disposing of the proceeds of certain boxes of lemons, consigned to the defendant Filippo Cappadonia, until the determination of the action; and judgment was demanded that the net proceeds of the sale be paid to the plaintiffs. The defendant, the E. L. Goodsell Company (Limited), fruit auctioneers, were in possession of the lemons and were about to sell them. Dallas Flannagan, for the appellants. George A. Black and Lawrence Kneeland, for the respondents. [MAJORITY — Per Curiam :] Per Curiam : The plaintiffs having advanced to the defendant Cappadonia the money necessary to pay the duties upon the lemons, under an agreement that they should have a lien upon such lemons for the amount so advanced, and the defendant Cappadonia having used the money borrowed from the plaintiffs for the payment of such duties, we think that the lien of the government upon the lemons for duties passed to the plaintiffs by subrogation, so that the plaintiffs became vested with the lien of the government for such duties, and would be entitled to enforce such lien in this action. The shippers of the lemons have no claim against these plaintiffs and have no right to offset as against them the claim against the defendant Cappadonia, so as to destroy the plaintiffs’ lien. The shippers of the goods make no claim here to the proceeds of the sale, and it would be unjust to allow the proceeds of the sale to be paid to the defendant Cappadonia to enable him to defraud the plaintiffs by repudiation of his agreement with them that the goods themselves should be disposed of, and the amount that plaintiffs advanced be repaid out of the sale of the goods. The order should, therefore, be affirmed, with ten dollars costs and disbursements. Present — Barrett, Rumsey, Patterson and Ingraham, JJ. Order affirmed, with ten dollars costs and disbursements.