Lennon v. Cohen

• Decision Date: 22 September 1928
• Parties: LENNON v. COHEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

264 Mass. 414

163 N.E. 63

LENNON

v.COHEN.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 22, 1928.

Exceptions from Superior Court, Suffolk County; Louis S. Cox, Judge.

Action by Patrick O. Lennon against Max Waldo Cohen, who filed an answer in set-off. Judgment for plaintiff, and defendant brings exceptions. Exceptions overruled.W. J. Barry, of Boston, for plaintiff.

P. H. Kelley, of Boston, for defendant.

RUGG, C. J.

This is an action of contract on a judgment obtained by the plaintiff in the Supreme Court of the state of New York against the defendant Cohen and the Leather & Textile Products Company of New York as joint debtors. The Leather & Textile Products Company, hereafter called the corporation, is not made a party a defendant in the present action, which is brought against Cohen as the sole defendant within this jurisdiction. The plaintiff's declaration is framed on the New York judgment and sets out a copy of it. The defendant's answer pleads (1) merger of the judgment in an execution and payment thereof, (2) levy by the plaintiff of the execution on a large amount of property and a large amount of property under attachment on which the plaintiff intends to levy, and (3) nonjoinder of the corporation as joint defendant. The defendant also filed a long answer in set-off, all of which depends upon the basic averment that one Sherman is the real plaintiff in interest. The case was referred to an auditor, who made a comprehensive report. It then came on to be heard before the court without a jury. The plaintiff introduced the auditor's report and rested. The defendant testified in his own behalf as to his relations to the corporation and to Sherman. Undisputed facts seem to be that the New York judgment was founded on a note made by the corporation to its own order, indorsed by it, by the defendant and Sherman, and discounted by the Columbia Bank and the proceeds used by the maker, all within the state of New York. The maker of the note was a corporation organized under the laws of New York and having no place of business in this commonwealth. The note, being unpaid after maturity, was turned over by the Columbia Bank to an attorney for the purpose of bringing action on it, which was commenced in the name of the present plaintiff in the New York court. At the trial the defendant was in attendance and verdict was rendered for the plaintiff. The present action is founded on the judgment entered pursuant to that verdict. The Manufacturers' Trust Company of New York, as found by the auditor, is ‘the successor of the said Columbia Bank, is the beneficiary of the judgment obtained by the plaintiff for said bank and the proceeds of the note on which judgment was obtained.’ Since the entry of that judgment, there has been paid to the said Manufacturers' Trust Company, the present owner and holder of the note, by Sherman, coindorser thereon with the defendant, a substantial sum of money. All the assets of the corporation were taken by the sheriff and the amount realized at his sale was credited on the judgment. ‘The corporation is still in existence in New York, never having been dissolved or gone out of operation, except the assets were seized which paralyzed them for want of capital. The corporation had to stop, and it did stop.’

[1] The judge found for the plaintiff for the entire amount claimed now to be due on the judgment, and declined to deduct from the amount otherwise due the amount paid by Sherman on the note since the judgment. The defendant presented five requests for rulings, all of which were denied. The second and fifth in substance asked for a ruling that on the undisputed facts Sherman had a beneficial interest in the New York judgment and in this suit. The findings of the auditor were that this action is not brought by Sherman, nor for his use or benefit, but is brought by the plaintiff for the use and benefit of the Columbia Bank, which has been merged with the Manufacturers' Trust Company; and that Sherman bas no beneficial interest in the present action in any sense except that he was a coindorser with the defendant on the note on which that judgment was founded. It is manifest that such interest on the part of Sherman does not affect the right of the plaintiff to recover against the defendant. It requires no analysis of the evidence to demonstrate that the judge was not required to grant these requests.

The fourth request was to the effect that the indisputable consequence of all the evidence was that collusion existed between the owner of the note and Sherman to compel the defendant to pay the entire amount of the note. The auditor expressly refused to make findings of this nature. Clearly the judge was not obliged to accept this view of the defendant and committed no error of law in denying this request.

[3] Another request, after reciting facts as to the action in the New York court having been brought on the note by the plaintiff for the benefit of the Manufacturers' Trust Company and the substantial payment to that trust company by Sherman on account of the note, and that no mention was made to the court of this commonwealth by the plaintiff of such payment, proceeds in these words:

‘From the foregoing facts, which cannot be disputed, the defendant requests the court to rule that complete justice cannot be done in this suit in view of the facts above set forth, and that the court should decline to exercise any jurisdiction and should dismiss the plaintiff's action, because the real party in interest, the Manufacturers' Trust Company, now having possession of the said note and not having surrendered the same, the said note is an outstanding liability which is being enforced against the said Sherman, the whole thereby resulting in a fraudulent conspiracy between Lennon and the Manufacturers' Trust Company to defraud the defendant, Cohen, providing this judgment is now enforced.’

There are no facts set forth in the record which require that ruling.

[4][5] The defendant argues that no decision can be rendered against the defendant because the action is on a judgment running against the defendant and the corporation jointly. That contention cannot be supported. This point was raised by plea in abatement, which was denied after hearing. The way to bring the correctness of that ruling before us was by exception. Potter v. Lapointe Machine Tool Co., 201 Mass. 557, 559, 88 N. E. 418;Wright v. Graustein, 229 Mass. 68, 118 N. E. 227. No exception was saved to that order. Hence no question on that point is before us unless it affects the integrity of the final judgment to be entered. The express terms of G. L. c. 227, § 15, permit the prosecution of the action against the defendant on whom service is made when legal service cannot be made on the one or more jointly liable with the defendant because of absence from the commonwealth. Shirley v. Shattuck, 13 Metc. 256, 260;Odom v. Denny, 16 Gray, 114, 115;Stone v. Wainwright, 147 Mass. 201, 203, 17 N. E. 301. There is nothing in Frost v. Thompson, 219 Mass. 360, 106 N. E. 1009,Contakis v. Flavio, 221 Mass. 259, 108 N. E. 1045, or Shields v. Barrow, 17 How. 130, 15 L. Ed. 158, at variance with this conclusion.

[6] The remaining request was that upon all the evidence the plaintiff was not entitled to recover. In this connection the defendant relies upon the New York Code of Civil Procedure, § 1913, which appears also as section 484 of the Civil Practice Act of New York in effect October 1, 1921, the latter being entitled ‘Limitation of Action upon Judgment.’ It provides, so far as here materal:

‘Except in a case where it is otherwise specially prescribed in this act, an action upon a judgment for a sum of money, rendered in a court of record of the state, cannot be maintained between the original parties to the judgment, unless either 1. Ten years have elapsed since the docketing of such judgment, or, 2. It was rendered against the defendant by default for want of an appearance or pleading and the summons was served upon him otherwise than personally; or 3. The court in which the action is brought has previously made an order granting leave to bring it. Notice of the application for such an order must be given to the adverse party. * * *’

It does not appear that the defendant raised any question in the court below concerning this New York statute. He urges it in argument before us in support of his request for ruling made to the trial judge that ‘upon all the evidence the plaintiff is not entitled to recover in this action.’ He asks us to take judicial notice of this New York statute, although there is no reference to it in the record, because of St. 1926, c. 168, which enacts that——

‘The courts shall take judicial notice of the law of the United States or of any state, territory or dependency thereof or of a foreign country whenever the same shall be material.’

We do not undertake now to delimit the scope of said chapter 168 or to determine how it shall be made to appear that such foreign law is material. See Atlantic Transportation Co., Inc., v. Alexander Shipping Co. Inc., 261 Mass. 1, 157 N. E. 725. An important question of foreign law, even under said chapter 168, cannot be raised as of right at the argument in this court for the first time; and this court cannot thus be required to make a decision about it by taking judicial notice of it. The established procedure is that——

‘Exceptions may be alleged by any party aggrieved by an opinion, ruling, direction or judgment * * * of the superior court, * * * rendered upon any matter of law in any civil cause.’ G. L. c. 231, § 113.

[7] That law of procedure and practice remains as hitherto. It has not been changed by said chapter 168. It had been held respecting foreign law before the enactment of said chapter 168:

‘If the law is found in a single statute or in a single decision, the construction of it, like that of any other writing, is a question of law for the court....