
    Third Appellate Department,
    July, 1899.
    Reported. 42 App. Div. 335.
    Albany Brewing Company, Respondent, v. Edward L. Barckley, as Treasurer of Albany County, and A. Page Smith, as Receiver, etc., of Joseph Seeney, Appellants.
    Conversion—Surrender of a liquor tax certificate by the receiver of the holder thereof—Action for its conversion brought by an assignee of the certificate—Effect of adding the words “as Treasurer of Albany County” to the name of the county treasurer in the title of the action.
    Where a liquor tax certificate is delivered to a county treasurer for surrender by the receiver, appointed in supplementary proceedings, of the holder of the certificate, who, on the face of the papers, was entitled to surrender the certificate, and the county treasurer, without notice of the claim of an assignee of the certificate, who had advanced the money with which the certificate was purchased, issues duplicate receipts, required by the Liquor Tax Law (Laws of 1896, chap. 112), and transmits the certificate to the State Commissioner of Excise, the failure of the county treasurer to deliver it upon the demand of the assignee, made after the county treasurer had parted with possession, does not establish a conversion.
    The fact that in the title of an action brought for the conversion of the certificate the words “as Treasurer of Albany County” are added to the name of the defendant, the county treasurer, is not fatal to its maintenance, as the words quoted may be disregarded as descriptive merely.
    
      Appeal by the defendant, A. Page Smith, as receiver, etc., of Joseph Seeney, and also by Edward L. Barekley, as treasurer of Albany county, from a judgment of the County Court of Albany county in favor of the plaintiff against the defendant Edward L. Barekley, as treasurer of Albany county, for $250, entered in the office of the clerk of the county of Albany on the 28th day of November, 1898, upon the verdict of a jury rendered by direction of the court, and also from two orders, bearing date the 16th and 19th days of November, 1898, and entered in said clerk’s office, denying the separate motions of the defendants for a new trial made upon the minutes.
    This action was brought to recover the value of a liquor tax certificate issued to Joseph Seeney on the 30th of April, 1897. The action was commenced on the 25th of January, 1898, Mr. Barekley, as treasurer, being then the only defendant. It was alleged in the complaint, among other things, that prior to the 1st of November, 1897, Seeney assigned to the plaintiff the said certificate and all his interest therein and empowered the plaintiff to surrender it and recover to its own use all moneys due by virtue of such surrender, and that on the first of November it was the sole owner of such certificate and rights; that prior thereto Seeney had ceased to traffic in liquors and the certificate was worth $250; that Barekley, as treasurer, on the first of November, wrongfully and without authority of law took into his possession the said certificate without the knowledge or consent of the plaintiff and refused to deliver it to the plaintiff though possession of the same was demanded by the plaintiff, and still wrongfully retains it and refuses to pay the plaintiff its value. Judgment was demanded for $250 and interest. The defendant Barekley, as treasurer, in his answer, among other things, denied any wrongful taking or retention of said certificate; denied any knowledge or information sufficient to form a belief as to the transfer to plaintiff or its ownership; alleged the surrender of the certificate to him by the receiver of the property of Seeney duly appointed, and the issuing by him, as county treasurer, of duplicate receipts, pursuant, to the provisions of section 25 of the Liquor Tax Law (Laws of 1896, chap. 112, as amd. by Laws of 1897, chap. 312), and the delivery of one of such receipts to said receiver, and the transmission of the other, together with the certificate and the petition for cancellation, to the State Commissioner of Excise. It was also alleged that the receiver complied with the provisions of section 25 in all matters pertaining to the surrender of the certificate, and claimed to be entitled to all moneys due by virtue of the surrender, and demands the same of the defendant, and a stay was prayed for until the receiver should be brought in as defendant. Thereafter, on April 19, 1898, by an order of the County Court, on motion of the attorney for the plaintiff, plaintiff was given leave to bring in as a party defendant the said receiver. An amended summons and complaint were accordingly served,. the amended complaint being the same, as the original, except that the appointment of the receiver was alleged, and it was stated that he claimed to have some interest in the cause of action set out in the complaint or in the certificate, and that such interest, if any, accrued subsequent to that of the plaintiff and was subject to its rights. The receiver in his answer claimed to have rightfully taken into his possession and surrendered the certificate in question, and received from the officer issuing the certificate the surrender statement which authorized him to receive the rebate. It was alleged that the alleged assignment to plaintiff was conditioned upon the plaintiff furnishing beer to Seeney during the time the license was operative ; that the plaintiff failed to perform this condition, and, therefore, ceased to have any claim on the certificate.
    Upon the trial at the close of the evidence the court directed a verdict in favor of the plaintiff against the defendant Barekley, as county treasurer of Albany county, for the sum of $250, and declined to submit any question of fact to the jury. Exception was duly taken by the defendants.
    
      William E. Schenck, for the appellant Barekley.
    
      George H. Mallory, for the appellant A. Page Smith.
    
      Robert W. Hardie, for the respondent.
   Merwin, J.

On the 30th of April, 1897, the defendant Barekley, as county treasurer of Albany county, in consideration of the payment to him by Joseph Seeney of the sum of $500, issued to Seeney a liquor tax certificate numbered 12,953, authorizing and empowering Seeney to traffic in liquors at No. 1235 Broadway in the city of Albany from April 30, 1897, to April 30, 1898, under and pursuant to subdivision 1 of section 11 of the Liquor Tax Law (Laws of 1896, chap. 112). The money which Seeney paid was borrowed by him of the plaintiff on the 26th of April, 1897, and Seeney gave to the plaintiff his note therefor. As a part of the same transaction Seeney executed and delivered to the plaintiff an instrument in writing in which Seeney, after a recital that a liquor tax certificate was about to be issued to him, the moneys to pay for which had been advanced by plaintiff, assigned and transferred to the plaintiff “ all the right, power and option which I have or which I shall hereafter have under the said tax certificate and the provisions of said statute to surrender or cancel said tax certificate or to have the said tax certificate transferred to any other premises than those above mentioned, or to sell, assign or transfer the said tax certificate, or to receive and- collect the amount of any unexpired coupons on said tax certificate and any money due, or to become due, upon the surrender, transfer or cancellation of said tax certificate”; and Seeney also thereby constituted the plaintiff his attorney, irrevocable, for him and in his name to transfer to itself or to any other person the said certificate and have it transferred to any other premises and to surrender and cancel the same and to make all necessary instruments to accomplish such purposes; and in the event of such sale or surrender Seeney transferred to the plaintiff any and all moneys received or payable for such tax certificate. Seeney also agreed to deliver up the certificate to the plaintiff upon demand, and authorized the plaintiff to enter upon his premises and take away the certificate at any time.

At the time of this transaction it was understood between the plaintiff and Seeney that the plaintiff should furnish Seeney beer during the term of the license. It did so up to October 24, 1897, when it refused to furnish it longer, by reason of the failure of Seeney to make payments. In October the plaintiff recovered judgment against Seeney upon the note, and this judgment has not been paid. In the latter part of October the plaintiff demanded the certificate from Seeney, and he agreed to bring it to the plaintiff on the thirty-first of October to be surrendered.

On the 30th of October, 1897, the defendant A. Page Smith, by an order of the Albany county judge in proceedings supplementary to execution upon a judgment in favor of George W. Whitman against Seeney, was appointed receiver of the property -of Seeney, and upon the same day the receiver took possession of the said certificate. Upon the first of November following, the receiver surrendered this certificate to the county treasurer together with a verified petition in due form for its cancellation and the payment to him of the proper rebate. The treasurer thereupon gave to the receiver a receipt for the certificate and a statement of the amount of the rebate and by whom payable, and sent to the State Commissioner of Excise a duplicate of the receipt together with the certificate and the petition for cancellation.

The plaintiff claims, and at the trial gave evidence tending to show, that the treasurer or his deputy, before sending the certificate to the State Commissioner, had verbal notice from plaintiff that it claimed to own the certificate. This, however, was denied on the part of the defendants. On the 24th of November, 1897, the plaintiff served on Mr. Barckley, individually and as treasurer of Albany county, a written notice setting out its claim to the ownership and possession of the certificate and demanding the proceeds or rebate due by virtue of the surrender and cancellation. On the 25th of January, 1898, the plaintiff served a notice on Mr. Barckley, as treasurer, demanding possession of the certificate and also demanding its value, being the sum of $250. The certificate has not been in possession of the county treasurer since November 1, 1897. The rebate has not been paid to anybody. It appears that on or about December 8, 1897, the State Commissioner sent to the office of the county treasurer orders for the payment of the rebate, payable to the receiver, but they were on the same day recalled.

The certificate in question came into the possession of Barckley, as county treasurer, on November 1, 1897. It was surrendered to him in due form by the representative of the party to whom it was issued, and a surrender statement or receipt given to the person who upon the face of the papers was entitled to it. The county treasurer prior to the surrender had no notice of the claim of plaintiff. If the county treasurer before any such notice transmitted the certificate to the State Commissioner, I fail to see upon what basis the county treasurer can be liable for its conversion. Under the statute (§ 25, as amd. by Laws of 1897, chap. 312), it was the duty of the county treasurer, upon the surrender of the certificate and the presentment of a petition in due form, to compute the amount of the rebate, execute duplicate receipts of statements in certain form, deliver one of such receipts to the person entitled to receive the rebate, and immediately transmit the other, together with the surrendered certificate and the petition for cancellation, to the State Commissioner. If within thirty days thereafter no proceedings are instituted leading to a forfeiture of the rebate, the State Commissioner is then required to prepare two orders for the payment of the rebate, one order for the one-third thereof directed to the State Treasurer', and one order for the two-thirds thereof directed to the fiscal officer of the proper locality, in this case the city of Albany, and transmit such orders to the officer who issued the canceled certificate, to be delivered to the holder of the duplicate receipt upon the surrender of such receipt, which should be immediately transmitted to the State Commissioner. The canceled certificate is not returned to the county treasurer, nor is the money in his hands with which to pay the rebate. He is simply to deliver the orders issued by the State Commissioner.

In this view of the case, the defendant, the county treasurer, was at least entitled to go to the jury on the question whether he transmitted the certificate to the State. Commissioner before he had any notice of the plaintiff’s claim. If he did, he did not have it in his possession when the demand was made; he had before that time lawfully received it and lawfully parted with its possession and would not be liable for its conversion.

The plaintiff, under the power of attorney or instrument of April 26, 1897, had a right at any time to enter upon the premises of Seeney and take the tax certificate. It is evident that the instrument above referred to was given as a security for the money loaned by plaintiff to enable Seeney to obtain the license. The plaintiff, under the facts appearing in the case, as between it and the receiver, had an equitable claim upon the certificate and any rebate thereon and the receiver took subject to sucli claim. (Niles v. Mathusa, 20 App. Div. 483; Koehler v. Flebbe, 21 id. 210; Matter of Jenney, 19 Misc. Rep. 244; affd., 19 App. Div. 627.) The plaintiff did not, however, take possession of the certificate as it might have done, but allowed it to remain upon the promise of Seeney to deliver it on the thirty-first of October to be then surrendered. In the meantime the receiver was appointed, took possession of the certificate and.on November first surrendered it to the county treasurer in due form and demanded payment of the rebate. This was done prior to the time the agent of the plaintiff claims to have given the county treasurer notice of plaintiff’s claim. The agent testifies that about noon he Avas at the county treasurer’s office; saw Mr. Bender, the deputy county treasurer, told him that he had learned that A. Page Smith had surrendered a liquor tax certificate issued to Seeney, and that he then told him that the plaintiff had an assignment of the license, and showed him the instrument of April 26, 1897. Mr. Bender testifies that no such occurrence took place on November first, but that it was several days afterwards and after all the papers had been transmitted to the State Commissioner. Prom the evidence on the part of the plaintiff it may be inferred that the surrender statement was delivered by the county treasurer to the receiver before the agent of the plaintiff saw the deputy. The plaintiff does not seem to have ever claimed that it desired to use the certificate except for the purpose of obtaining the rebate. It is not apparent that the county treasurer has ever done anything to deprive him of that right. The rebate has not been paid or the orders for that purpose delivered.

It seems to me that upon the undisputed facts in this case the county treasurer and the excise department had a right to consider the surrender of the certificate operative, and if so that the county treasurer was not liable for its conversion.

The Trial Court erred, I think, in holding that the defendant Barckley, as county treasurer or individually, was liable for the conversion of the certificate in question. It follows that a new trial should be granted.

No judgment was directed as to the defendant Smith, receiver, etc., and the judgment appealed from contains no determination as to his rights. His motion for a direction of a. verdict in his favor was denied, as also his motion to dismiss the complaint. The receiver was evidently brought in as a party defendant for the purpose of having a final determination as to the ownership of the certificate or rebate. It may be that upon a new trial that purpose may be accomplished. If the pleadings need to be amended, that is a question for the court below to consider.

The plaintiff in his law action as originally commenced was, probably, not obliged to bring in other defendants. (Chapman v. Forbes, 123 N. Y. 532.) Having done so voluntarily, it may be that the court had the power to adjust the rights of all parties, (Derham v. Lee, 87 N. Y. 599.) That question, however, need not here be determined. The defendant receiver will have the benefit , of the new trial where it is to be assumed all his rights will be protected.

It is urged by the defendants that the action is not maintainable because it is against Barckley “ as Treasurer of Albany County.” Those words may be deemed descriptive of his position, and if the cause of action alleged and proved is personal against him, they might be disregarded. (Lehman v. Koch, 30 N. Y. St. Repr. 224; Berford v. Barnes, 45 Hun, 253; Tighe v. Pope, 16 id. 180; 1 Ency. of Pl. & Pr. 540.) It is not apparent how the county of Albany would be bound or affected by the judgment. None of its moneys were applicable to this claim or were in the hands of the treasurer for that purpose. The action was not against the county (County Law, chap. 686, Laws of 1892, § 3), and the use of the words, “ as Treasurer, etc.,” is not, we think, necessarily fatal to the action.

All concurred.

Judgment and orders reversed and a new trial granted, costs to abide the event.  