
    The National Park Bank, Resp’t, v. Warren N. Goddard et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed March 22, 1892.)
    
    1. Injunction.
    A multiplicity of actions at law involving claims to the same property, which a court of law' cannot solve without working injustice, founded upon one continuous and fraudulent scheme, inflicting a similar injury upon all, and different only in detail and degree, and where the legal remedy of fifty defenses to fifty replevin suits is shown to be destructive to the lien and right of the plaintiff, presents a state of facts which fully justifies the interference of equity.
    
      2. Same—Replevin.
    After attachments in favor of the plaintiff had been levied on property of a firm, which had obtained it and that of others by fraud, actions of replevin were commenced by the others to recover the property fraudulently purchased of them by said firm, and said property was taken thereunder, some of them claiming one portion of a garment, others other portions, the goods sold having been manufactured into garments. Held, that an action to restrain such replevin suits, and to determine the claims of the parties to the property, was maintainable, and a receiver properly appointed to take charge of the property.
    ■ Appeal from judgment of the supreme court, general term, first department, affirming orders granting an injunction and appointing a receiver.
    
      Edward F. Dwight, Benno Loewy, Jno. Notman and Gruber & Landon, for app’lts; Otto Horwitz and JElihu Boot, for respt.
    
      
       Affirming 41 St. Rep., 439.
    
   •Finch, J.

The only question presented by these appeals is whether the court, sitting as a court of equity, had jurisdiction of the subject matter of the action; for, if it had, the order appointing a receiver, and enjoining the prosecution of the suits in replevin instituted by the several defendants, was not only within the discretion of the court, but absolutely essential to the relief which it was its duty to administer. We must determine that question principally upon the allegations of the complaint No answers had been served when the motion was made, and the equities of the complaint, if such existed, were questioned only by the affidavit used to resist the motion. We may and should take them into the account, but remembering that they constitute defensive allegations and raise to some extent issues of fact which the trial only can determine. The inquiry here is whether upon the plaintiff’s complaint, read in the light of the defendants’ affidavits, there was jurisdiction in equity over the subject matter involved, and in answering that question we should recur to the principal facts about which there is no practical dispute, before considering those about which the parties seem to disagree.

The papers on both sides, assuming the truth of their concurring allegations, assert one general fact, affecting all the parties alike and in the same substantial manner. That fact is that the members of the firm of levy Brothers & Go. formed the purpose and proceeded steadily and continuously in its execution of defrauding those with whom, the firm was able to deal, by procuring their money or property without payment or accounting, and intending not to pay or account, and effecting the purpose by false representations of their financial ability, and false appearances of solvency when utterly and wholly insolvent. The plaintiff corporation loaned to the firm by discounts of their paper about $90,000 in reliance upon these fraudulent assurances of the strength and safety of their endorsements, and finding itself thus deceived attached the whole stock of Levy Brothers & Co., which it found in their possession and apparent ownership.

The writ was issued upon proof of the representations made and upon the two affidavits of Lilienthal and Hershfield which disclosed the falsity of the representations made, the insolvency of the firm, and the fraudulent character of its business dealings. The levy of the plaintiff and the disclosures of the affidavits filed aroused into activity the other victims of the same general fraud. Most of them had sold goods to the firm, induced thereto by the same or similar false representations of solvency and financial ability. These creditors chose to rescind their contracts of sale for fraud, and in so doing many of them refer to the affidavits on which plaintiff’s attachment was issued as the source of their knowledge that the representations made to them were false and fraudulent. Bach acting in liis own behalf brought a separate action of replevin against the sheriff and the fraudulent vendees to recover the specific property sold, until about fifty of such actions were brought and the writs placed in the hands of the coroner for execution. It is extremely probable that substantially the same representations which were made to the plaintiff were made whenever needed to the fifty or more vendors, and while separate proof thereof will be required, the evidence of falsity and of fraud will be common to them all, and once proved be available for each. It is evident, therefore, that the subject to be investigated is at bottom the fraudulent scheme of Levy Brothers & Co. which enveloped all the parties before the court and affected them all in the same general way, although in different degrees; and, because of that fact, that to some extent the same evidence which will establish the right of one will equally establish the right of all the rest; so that if a court of equity intervenes to prevent a multiplicity of actions only where they rest upon some common right invaded or some common injury inflicted, a doctrine to which in those broad terms I do not at present accede, there is here as the subject of investigation the one fraudulent scheme of the debtors inflicting in the same way a similar injury upon all their victims, different in degree, but springing from one general purpose worked out in one general way.

In that respect the case reminds me of Supervisors of Saratoga Co. v. Deyoe, 77 N. Y., 219, in which there had been an over-issue of notes bv the treasurer creating a false debt against the county. Bach holder could sue at law upon his notes and the county defend, but there was one scheme of fraud, common to all in its purpose, working in wrong in the same way, and differing only in its results as to persons and degree. That fact coupled with the further circumstance that the false notes could with difficulty be separated from the true, and only by an investigation which should cover the whole fraud and settle all rights in the process and so avoid a multiplicity of actions, furnished the grounds upon which the equitable jurisdiction was rested. The present case shows that remaining corresponding feature in a somewhat different, but equally conclusive way. The stock levied upon by the sheriff consisted largely of manufactured clothing into which had entered as separate elements the cloth of one vendor, the linings of another and the buttons of a third; or to the cloth which none of the vendors had sold had been added the linings of one and the buttons of another. How the angry claimants wrangled over the garments and- nearly tore them apart, the worried deputy of the sheriff describes. The complaint shows that these claimants have directed the coroner to take upon his writs the whole manufactured article into which the goods of the respective creditors have entered, so that there may be three claimants for the same coat, or one who merely furnished the buttons may take it wholly from the attaching creditor. A court of law cannot divide the article, and so follows a rule, not unjust to the fraudulent debtor, but inequitable as against the attaching creditor, and very likely to be so as to some of the vendors ; while a court of equity can turn the garments into money and distribute their value in just and fair proportion. How far these complications extend we cannot accurately know in advance of the trial, but they are alleged in the complaint as affecting generally the whole manufactured stock.

On this state of facts there is sufficient reason for maintaining the equitable jurisdiction. A subject-matter is presented within its adjudged and defined boundaries. A multiplicity of actions at law involving conflicting claims to the same property which a court of law could not solve without working injustice, founded upon one continuous and fraudulent scheme, inflicting a similar injury upon all and different only in detail and degree, and where the legal remedy of fifty defenses to fifty replevin suits is shown to be destructive to the lien and right of the plaintiff, presents a state of facts which fully justifies the interference of equity.

But in behalf of some of the defendants it is insisted that there are specific circumstances lying at the foundation of a few of the replevin suits which take those cases out of the doctrine asserted, and that as to the plaintiffs therein made defendants in the equity suit there is no equitable cause of action. One or more of the defendants intimate in their affidavits that the property replevied by them was delivered to Levy Brothers & Go. to be sold on commission, and never passed into their ownership at all; and one or more of the defendants assert that there is no dispute as to the identity of the manufactured goods which they claim, and no conflicting title thereto alleged by any one except the plaintiff in the attachment These facts, if satisfactorily established, may possibly prove to be a defense to the action as against such defendants. But these facts are new matter, alleged outside of the complaint, as to which the plaintiff will have a right to be heard. They amount to a denial in some degree of the plaintiff’s general allegations, and may establish a defense without overturning or dislodging the jurisdiction. It often happens that jurisdiction over the subject-matter is followed by a refusal of the equitable remedy to spme or all of the plaintiffs, or by a judgment dismissing the complaint as to some or more of the defendants. The plaintiff may come into court with an equitable cause of action plainly within the jurisdiction, and yet so fail on his facts or be confuted by the defense as to lose all right to equitable relief. But that result in general must await the developments of the trial. It is rare that the court is justified in turning the plaintiff out of court on a preliminary motion founded upon affidavits.

The present complaint shows that the firm of Levy Brothers & Co. was composed of. three persons; that one of them has absconded and cannot be found ; that another is sick and has lost his mind ; and that the third came into the firm after almost all of ■the fraudulent purchases were, made; and that the plaintiff is necessarily ignorant of the character and circumstances of the purchases made by the firm. It is quite apparent that no one will defend the replevin suits unless it be. the sheriff acting in behalf of the plaintiff, and it may. very well be that the latter, while now unable to contradict the affidavits, may come to the trial prepared to do so. The complaint also alleges that the seizure by the coroner was far in excess of the value of the property claimed in the replevin suits.

So far as any of the defendants put themselves outside of the general scheme of fraud, and claim that there was no sale to the Levys at all, their affidavits are quite unsatisfactory. Mr, Gruber represents twelve firms and one individual and says that some of them, without naming which, “ will contend ” that the goods were simply consigned. Mr. Ewing deposes that his goods were delivered “ upon memorandum only,” but does not disclose the memorandum. He adds- that they were “ for inspection ” and had not been accepted.” Possibly if we had the facts instead of the affiant’s conclusions we might think there had been an acceptance. All the other cases stand upon the general fraud authorizing a rescission, and while.it may be that some of the defendants will be able to show that they claim nothing but unmanufactured goods, perfectly identified and as to which there are no conflicting claims, yet the fact will not affect the general jurisdiction acquired, but may influence the judgment in the end to be rendered. Something of that kind appears to have happened in Ostrander v. Weber, 114 N. Y., 96; 22 St. Rep., 979, where the course of the trial evolved a purely legal right of one of the parties to a few distinct articles of the property, and the court ordered it to be sold separately. No harm can come to the defendants who shall show themselves to have a pure, legal right which the equities in the complaint do not touch. If there proves to be no conflict over the goods remaining unmanufactured and no equitable cause of action as to them, the court may dismiss the complaint to that extent and allow the replevin actions to proceed. Any injury from delay will be likely to enter into damages for the detention. Or, .•as in the case cited, the court may order a separate sale of identified parcels.

But it is further suggested that neither the sheriff nor coroner are made parties. They may be brought into the litigation, and should be so brought in as parties both in order that they may be bound by the judgment and be protected by it

A further objection is made that the attaching creditor has no right •or title in or to the property attached and so has no standing in a -court of equity to raise any question; and we are referred to the language of the late chief judge in Scott v. Morgan, 94 N. Y., 508, which described the position of the plaintiff in an execution. As ' :.a statement of the legal right of the execution creditor no fault is "to be found with it. The special property in the goods levied upon is in the officer, who holds a legal title for the protection of his levy, hut he holds it for the benefit of the levying and attaching -creditor, who thereby obtains an interest in and a lien upon the property. He is the real person interested and equity, which never suffers itself to be misled by a name or baffled by a definition, but deals with the substance and truth of things, can have no difficulty in recognizing the existing interest and lien of the ■creditor because it is worked out and made effectual through a legal title in the officer.

Our conclusion, therefore, is that there was jurisdiction to make -the order and it should be affirmed, with costs.

All concur.  