Hunting v. Blun

• Decision Date: 27 November 1894
• Citation: 143 N.Y. 511,38 N.E. 716
• Parties: HUNTING v. BLUN.
• Court: New York Court of Appeals Court of Appeals

143 N.Y. 511

38 N.E. 716

HUNTING

v.BLUN.

Court of Appeals of New York.

Nov. 27, 1894.

Appeal from supreme court, general term, fifth department.

Action by Frank M. Hunting against Ferdinand S. M. Blun for the value of certain services. There was a verdict for plaintiff, and a motion for new trial on a case and exceptions was ordered to be heard in the first instance at general term. From an order at general term (23 N. Y. S. 965) denying the motion, and directing judgment for plaintiff, defendant appeals. Affirmed.

B. T. Wright, for appellant.

E. C. Aiken, for respondent.

FINCH, J.

The plaintiff, as assignee of certain employés of an insolvent corporation, sued the defendant, a stockholder, for the amount of their unpaid wages. It was necessary for the plaintiff to prove the condition precedent attached by the law to his right of action,-that judgment upon the demand had been rendered against the corporation, and execution thereon had been returned unsatisfied. He proved such a judgment, obtained in the Auburn city court; but the corporation was located out of the city, and the judgment was held to be a nullity for want of jurisdiction in the local court. The plaintiff then sought to excuse the nonperformance of the essential condition by showing that it became impossible within the period prescribed. He produced the record of an action in the supreme court, brought by a creditor of the corporation to sequestrate its property and for the appointment of a receiver. Judgment was rendered granting that relief, and forbidding creditors from suing the company or interfering with its assets. This injunction made performance of the condition precedent practically impossible. Such fact excused the omission. Hardman v. Sage, 124 N. Y. 32, 26 N. E. 354. But the defendant now attacks that judgment as also void for want of jurisdiction, and insists that plaintiff was at liberty to sue, and could have disregarded the injunction as a nullity, and without being guilty of contempt of court. Even if that were true, I do not think he was bound to take the risk. In judging of his omission to act, and measuring the quality of his excuse, it does not seem to me that we should require him to go behind the explicit order of the court, and determine at his peril whether he could safely defy it. The fact of its existence may reasonably justify a conclusion that a practical impossibility stood in the way of a suit by plaintiff against the corporation. But, however that may be, I think the judgment of sequestration, and the injunction which accompanied it, were not shown to be void by any evidence which the defendant offered. The plaintiff in that case, by his...