HUBBELL v. SYRACUSE IRON WORKS

HUBBELL v. SYRACUSE IRON WORKS. N. Y. Court of Appeals; June, 1890. 1. Appeal; receiver as representative.] A receiver who has recovered judgment but has no substantial interest in a question between several defendants is not to be deemed sufficiently to represent the defendants who are interested to maintain the judgment against an appeal taken by the other defendants. 2. The same s dismissal of appeal.] If in such case the appellants do not serve and bring in, as parties to the appeal, the defendants interested to sustain the judgment, the appeal should be dismissed on motion. Appeal from order made by the General Term in the Eourth Department. Charles E. Hubbell, as receiver of the Syracuse Iron Works, brought this action against that company and Alfred Wilkinson, as trustee under its mortgage bonds, and Giles and Charles B. Everson, the Merchant’s National Bank and the Robert Gere Bank, and others, to determine questions as to the validity of bonds issued by the Syracuse Iron Works some of which were held by various defendants. On a trial by the court it was held that a specified portion of the bonds held by the Merchant’s Bank and by the Robert Gere Bank respectively, and bonds held by the receivers of Wilkinson & Co. were invalid ; and also that Everson was not entitled to a lien which he claimed on the bonds or proceeds. Judgment was entered accordingly. The defendants, the Everson’s, appealed to General Term ; but addressed their notice of appeal to and served it upon the attorney for the plaintiff, only, and not to or upon the attorneys for their co-defendants, the banks, nor the receivers of Wilkinson & Co. The plaintiff’s attorney moved at General Term to dismiss so much of the appeal as was taken from that part of the judgment in favor of the bank and the receivers. The motion was made on notice and the affidavit of the attorney which stated the foregoing facts in detail, and that the parties really interested in the controversy were those who were holders of the bonds determined by the judgment to be valid. The attorney for the Merchant’s Bank and the receivers made a similar motion, founded on his affidavit, which stated further that the plaintiff, the receiver, had asked leave to appeal from the part of the judgment in question and the application had been denied ; that no case and exceptions had been served on the attorneys for the bank and the receiver, and they had had no opportunity to appear and serve amendments, and had been prevented from appealing by the fact that .the judgment was favorable to them. A similar affidavit and notice of motion was served by the attorney for the Robert Gere Bank and Mr. Gere. The Supreme Court at General Term granted the motion and ordered that unless the appellants, Charles B. Everson and Giles Everson, shall perfect their appeal against the defendants, Merchant’s National Bank, Robert Gere Bank, Charles E. Hubbell and Albert K. Hiscock, receivers of Wilkinson & Co., within sixty days from this date, that said appeal of said Everson’s be and the same is hereby dismissed. And it is further ordered that if such appeal shall be so perfected within sixty days from this date, then and in that event this motion to dismiss be and the same is hereby denied. But it is further ordered, that if the appellants take an appeal from this order to the court of appeals then the sixty days mentioned in this order shall not begin to run until the first day of June, 1890. The opinion rendered by the General Term is given below. From this order the Everson’s appealed. Waters & McLennon for the appellants, besides discussing the merits, urged that: I. “ The question before this court is, are the co-defendants of the appellants adverse parties in the judgment appealed from to the General Term within the meaning of section 1300 of the Code of Civil Procedure, so as to require the notice of appeal to be served upon them to perfect the appeal and so as to defeat an appeal duly perfected as to the plaintiff in the judgment. II. The co-defendants of the appellants are not adverse parties in the judgment to the appellants for the following reasons, to wit: 1. During the whole litigation from the summons to the judgment they did not comply with the absolute requirement of section 521 of the Code of Civil Procedure and hence they are not adverse parties as to their co-defendants under the provisions of that section. 2. But the case is not one in which they could have entitled themselves to have their ultimate rights determined by the judgment even if they had demanded it in their answers and served those answers upon their co-defendants. 3. The reason why they could not do so is that their rights or cause of action as against their co-defendants are wholly independent of the cause of action in favor of the plaintiff and wholly disconnected with it (Smith v. Hilton, 50 Hun,236, at page 239; Jones v. Grant, 10Paige, 348; Kay v. Whittaker, 44 N. Y. 565 ; Lansing v. Hadsall, 26 Hun, 619; Metropolitan Trust Co. v. Tonawanda, etc. R. R.Co., 18 Abb. N. C. 368 ; Derham v. Lee, 87 N. Y. 599, 604). E. Nottingham, for Robert Gere Bank and another respondent, cited : Morrison v. Morrison, 16 Hun, 507; Barnes v. Stoughton, 6 Id. 254; Cotes v. Carroll, 28 How. Pr. 436; Hiscock v. Phelps, 2 Lans. 106. William G. Tracy, for Merchant’s Nat. Bank and Hubbell, receiver, cited, also, Patterson v. Hamilton, 26 Hun, 665 ; Attorney-General v. Guardian Mut. Life Ins. Co., 77 N. Y. 272 ; Gillett v. Moody, 3 Com. 479; Talmage v. Pell, 7 N. Y. (3 Seld) 328. Parties who would gain nothing by a reversal are not entitled to appeal. 9 Abb. N. Y. Dig. (2 Supp. vol. 1) 42, and see Garnsey v. Knights, 1 Supm. Ct. (T & C.) 259, As to the right of a receiver or trustee, compare Bockes v. Hathorn, 78 N. Y. 222 ; Honegger v. Wettstein, 94 Id. 252. The objection may be deemed waived if not so taken. See last preceding case. [MAJORITY — Per Curiam.] The Court of Appeals affirmed the order on the opinion of the General Term, which was as follows: Per Curiam. By the motion papers it is apparent that the plaintiff, the receiver, has no substantial interest in the judgment which the appellants seek to review. The defendants, other than the appellants, appear to be interested in the judgment with rights adverse to the appellants ; and being parties to the action they should,-be afforded an opportunity to represent and protect their rights. It is not reasonable to suppose the receiver will protect and represent the rights and interests of the defendants so far as they are adverse to the rights of the appellants. The appeal has not been perfected against the defendants, and the appeal of the appellants if heard would not authorize the court to pass on the interest and rights of the defendants in the judgment. Whether the appellants may successfully obtain relief which will enable them to perfect the appeal as against the other defendants, we need not now determine. Unless the appellants shall perfect their appeal against the other defendants within sixty days, we think their appeal should be dismissed. Motion granted, unless the appellants shall perfect the appeal against the defendants beneficially interested in the judgment within sixty days. If such appeal shall be perfected in sixty days, then, in that event, the motions are dismissed. No costs are allowed.