Volume 95 — New York Supreme Court Reports

<p>Action against a non-resident — levy under an attachment necessary — creditors Mil — prerequisite of a complaint under subd. 2 of section 655 of the Code of Civil Procedure— scope of the equity powers of the court.</p> <p>In an action "brought against a non-resident for the recovery of a sum of money only, where the defendant is served with the summons without the State, no judgment can he entered against him until an attachment issued in the action has been levied upon his property.</p> <p>Ordinarily, an action in the nature of a creditor’s bill cannot be maintained until after entry of judgment and the return unsatisfied of an execution issued thereon.</p> <p>The complaint in an action instituted under the provisions of subdivision 2 of section 655 of the Code of Civil Procedure, in aid of an attachment, must allege not only that the defendant has not appeared in the action, but also that he has made default therein.</p> <p>Semble, that the provisions of the Code of Civil Procedure, in reference to attaching creditors’ actions and creditors’ hills, do not extend so far as to deny to a creditor the interposition of the equity powers of the court, where the situation is such as to render it impossible for him to obtain relief under those provisions, but such equitable powers will not be extended to cases where parties may by compliance with the provisions of the Code obtain full relief and protection.</p>

<p>Appeal by the defendant, Joel S. Hoyt, as surviving partner of tbe firm of Joel S. Hoyt & Co., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 15th day of December, 1891, upon the verdict of a jury rendered after a trial at the Broome Circuit, and also from an order entered in said clerk’s office on the 3d day of January, 1895, denying the defendant’s motion for a new trial made upon a case arid exceptions.</p> <p>The action was for a breach of warranty on the sale of a large quantity of tallow to the plaintiff’s testator by the firm of Joel S. Hoyt & Co., of which the defendant is the survivor. The defendant’s firm were manufacturers of tallow. The contract was made by correspondence between the parties. The questions whether there was an express warranty of the tallow sold, if so, whether there was a breach of such warranty, and as to the amount of damages sustained by the plaintiff were submitted to the jury, which found for the plaintiff. The verdict was $172.21, after deducting the defendant’s counterclaim of $404.18. Thus the amount of damages awarded to the plaintiff was $576.39, including the interest upon the balance after deducting the amount due the defendant.</p>

Appeal by George N. Crouse and others from a decree of the Surrogate’s Court of the county of Onondaga, entered in said court on the 12th day of March, 1895 : (1) Denying the appellants’ motion to amend the proceedings for an accounting pending in that court by striking out the name of Ansel White, Jr., and his heirs wherever the same occurred as parties to that proceeding, upon the ground that the Supreme Court, in an action where all the parties to that proceeding were…

<p>Railroad corporation, —readjustment of a franchise tax under section 19 of chapter 542 of 1880 [added by chapter 463 of 1889] — sufficiency of the verification of the petition — discretion of the Comptroller in receiving evidence — property employed without the State — bonds and stock of foreign corporations, their legal situs.</p> <p>A petition was made to the Comptroller of the State of New York by a railroad corporation, under the provisions of section 19 of chapter 542 of the Laws of 1880 (added by chapter 463 of the Laws of 1889), for the readjustment of the franchise tax assessed against it for certain years. The petition was signed by John Carstensen, comptroller of such corporation. The verification to the petition was not signed by him and was in the following form :</p> <p>“State of New York, ) . City and County of New York, '</p> <p>“John Carstensen, being duly sworn, and being duly known to me as the Comptroller of the New York Central and Hudson River Railroad, states that he is the said comptroller and that the facts set forth in the foregoing statements are correct and true to the best of his knowledge and belief.</p> <p>“ [l. s.] _ D. "W. PARDEE,</p> <p>“ Notary Public, Kings Couhty.</p> <p>‘ Cert, filed in New York County, Nov. 28, 1893.”</p> <p>Held, that Carstensen, Raving signed the petition and being named in the affidavit of verification, it was not necessary for him to sign the verification;</p> <p>That the effect of the affidavit of verification was not impaired because of the words “ to the best of his knowledge and belief ” at the end thereof.</p> <p>In reviewing the decision of the Comptroller, under the provisions of section 19 of chapter 548 of the Laws of 1880 (added by chapter 468 of the Laws of 1889), the General Term of the Supreme Court is not governed by the same rules as are applicable on an appeal from a judgment entered in an ordinary action of law. The strict rules of evidence applied fn actions do not govern in a proceeding before the Comptroller, and he may receive affidavits as well as evidence.</p> <p>The Comptroller of the State of New York, in a proceeding brought before him for a readjustment of a franchise tax under the provisions of section 19 of chapter 543 of the Laws of 1880 (added by chapter 468 of the Laws of 1889), is in fact an assessor; and, on a motion for the revision of an assessment on account of a mistake as to the amount of the capital stock of a corporation employed in the State, the Comptroller inay usually determine for himself what evidence he requires of the facts) and it is competent for him to rely upon the books and records of the corporation showing the amount of its property employed out of the State, and the General Term of the Supreme Court will not reverse his finding on the ground that it was based on such evidence.</p> <p>That part of the capital stock of a railroad company which is invested in freight cars, permanently engaged out of the State, is not subject to a franchise tax under the provisions of chapter 542 of the Laws of 1880, and the acts amenda-tory thereof and supplemental thereto, and the stock of foreign corporations, in which a portion of the capital stock of such railroad company is invested, is not capital stock used in the State of New York.</p> <p>The bonds of foreign corporations, owned by a railroad company incorporated under the laws of the State of New York, are presumably held at the office of such company within this State, and, in determining the amount of its franchise tax, such bonds, as well as all choses in action, unless kept, employed or used without the State, have their situs at the domicile of the owner, and are properly included as part of the capital stock of the railroad corporation.</p>