
    National Broadway Bank and Thomas J. Dunn, Sheriff of the County of New York, Plaintiffs, v. Charles E. Sampson and Others, Defendants.
    
      Attachment of a debt owing by a limited, partnership to a corporation, both boganized'under the laws of another State and doing business therein — defeated by the prior appointment of a receiver of the corporation in such other State — a party introducing evidence as to facts not pleaded by his adversary cannot object to their being considered.
    
    
      A. limited partnership, organized under the laws of the State of Massachusetts, and doing business in that State, was the selling agent of a Massachusetts corporation. The limited partnership had its place of business in the State of Massachusetts, but maintained in the city of New York a branch office at which, it received orders for the. goods of the corporation.
    The partnership terminated April 15, 1897, at which time the limited partnership was indebted to the corporation in the sum of §25,000. On the same day an ' -order was made by á Massachusetts court appointing a receiver of all the assets of- the corporation, and directing the receiver to collect all the outstanding debts. This order was served upon the limited partnership in the State of Massachusetts on April 17,1897. On April 19 and 20,1897, attachments issued in actions brought against the corporation in the State of New York were attempted to be levied upon the indebtedness due from the partnership to the corporation, service of the warrants and notices being made upon a member of the partnership residing in the city of New York.
    ' Meld, that the jurisdiction of the courts of the State of New York' over the indebtedness was, at most, only concurrent with the jurisdiction of the Massachusetts courts over it, and that, as the Massachusetts courts had first acquired such jurisdiction and had taken the indebtedness into its own custody, such indebtedness was not subject to an attachment in the State of New York.
    A plaintiff who, upon the trial of an action, introduces evidence establishing that he is not entitled to maintain the action, will not, on an appeal from a judgment entered in his favor, be permitted to urge that the defendant is not entitled to avail himself of such defense because he neglected to plead it in his answer.
    Motion by the defendant, Charles E. Sampson, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury, rendered by direction of the court after a trial at the New York Trial Term.
    
      Ojiarles E. EugJies and George A. Strong, for the motion.
    
      Henry B. Twonibly, opposed.
   Patterson, J.:

This case comes before ns upon exceptions ordered by the trial judge to be heard in the first instance at the Appellate Division, a verdict having been directed for the plaintiff. The action was brought under section 677 of the Code of Civil Procedure to recover, for the National Broadway Bank and the Central National Bank of the city of New York, attaching creditors of the Bennett Manufacturing Corporation of Massachusetts, a certain indebtedness of O. H. Sampson & Co. to the Bennett corporation, it being claimed by the plaintiffs that attachments were levied on the indebtedness on the 19th and 20th of April, 1897. All the members of the firm of O. H. Sampson & Co. were made parties defendant to the present action, but Eugene H. Sampson and Charles E. Sampson alone appeared. Eugene H. Sampson died before the trial and the action was not revived as against his representatives. The verdict directed by the court below was against Charles E. Sampson only; The Bennett Manufacturing. Corporation was, as stated, a foreign corporation; O. H. Sampson & Co. was a limited partnership organized under the laws of the State of Massachusetts, and doing business at Boston in that State. The special partnership seems to have expired April 15, 1897. Before that time it was the selling agent of the Bennett Manufacturing Corporation. ■ It had its principal place of business at Boston, but maintained in the city of New York a branch office, at which it received orders for goods of the Bennett corporation. At the time of the expiration of' the partnership of 0. H. Sampson & Co. it owed the Bennett corporation the sum of $25,000. As before stated, the attachments, in aid of which this action was brought, were issued on the 19th and 20th of April, 1897, and a levy was made, or-attempted to be made, upon the indebtedness due by O. H. Sampson & Go. to the Bennett corporation, service of the warrant and notice being upon one partner-of the firm residing in the city of New York. It thus appears that the debt sought to be attached was due by a non-resident special partnership to a foreign corporation; that the non-resident partnership had had a place of businéss in New York, and that one of its members resided in the city of New York at the time the levy was made, or was sought to be made, and it is claimed, in the first place, by the defendant that the debt was not susceptible of attachment in the State of New York, because its situs was not in that State, but in the State of Massachusetts.

We do not consider it necessary to determine in this case whether an effective attachment could be made in any event of this indebfeedness in the State of New York, one of the members of the dissolved firm residing here. It is plain, however, that the courts of Massachusetts had jurisdiction over the copartnership and its assets,. and that the debt had a situs in that State. It was made to appear on the trial that on the 15th day of April,'1897, the courts of Massachusetts placed in the custody of receivers all the assets and credits of the Bennett Manufacturing Corporation, which included the indebtedness of O. H. Sampson & Co. to that corporation, and-, hence the right and title to the claim'against O. IT. Sampson & Co. had passed from the control of the Bennett Manufacturing Corporation. By the order of appointment of the receivers, the. Bennett Manufacturing Corporation was directed to deliver to them all its stock in trade, its effects and property of every .kind and nature and all money, notes, drafts, bills of exchange, checks or other dividends, any indebtedness due and owing to the said corporation, together with all books of account, accounts, receipts, vouchers and papers of every nature belonging to or pertaining to such corporation, and the receivers were required to call in all the outstanding debts and moneys due to or on account of the business of the corporation. The order appointing the receivers was served upon O. H. Sampson & Co. in Boston on April 17, 1897, and this order and its service upon O. H. Sampson & Co. we think, had the effect of making such a change in the title and right to this indebtedness as would prevent its being attached here at the suit of á creditor of the Bennett Manufacturing Corporation. The debt was taken into the custody of the Massachusetts court. In New York, where property is thus situated, the title passing to a receiver, it would not be subject to attachment at- the suit of a creditor. (Matter of Christian Jensen Co., 128 N. Y. 550.) This is not the case of the courts of another State seeking to interfere with property, the situs of. which is outside of that State. The debt undoubtedly had a situs in Massachusetts and the debtor and creditor both resided in that State. One was a special partnership created under the laws of that State and doing business therein and the other was a corporation of that State. The most that could be said would be that there was concurrent jurisdiction of the Massachusetts and the New York courts and that of the Massachusetts court was the first exercised. We understand the rule to be that the court first acquiring jurisdiction draws to it the exclusive right to control the property involved in the litigation. (Heidritter v. Elizabeth Oil Cloth Co., 112 U. S. 294.) The case cited was referred to with approval in the opinion of the court by Peokham, J., in Matter of Schuyler’s Steam Tow Boat Co. (136 N. Y. 176) where, quoting from the Heidritter case, it is said that “ When the object of the action requires the control and dominion of the property involved in the litigation that court which first acquires possession or that dominion which is equivalent, draws to itself the exclusive right to dispose of it.” Judge Beckham further says : “ That dominion was acquired by the order appointing the receiver in this proceeding. The same principle was declared in ■U. T. Co. v. R. R. Co. (6 Biss. 197); Steele v. Sturges (5 Abb. Pr. 442); Texas Trunk R. Co. v. Lewis (81 Texas, 1).”

It is. urged, however, that the defendant Sampson cannot avail himself of the claim that the title to- the indebtedness had passed to the receivers before the attachments of the • plaintiff and the Central Bank were granted, inasmuch as no such defense was set up in the answer. That view might prevail were it not for the fact that the evidence respecting the appointment of the receivers appears- to have been introduced into the case by the plaintiff. The first reference we find in the record to a receivership is in testimony brought out by the plaintiff ; and further than that the order of the Massachusetts court appointing the receivers was read in evidence by the plaintiffs- and is one of their exhibits. Having thus introduced this evidence it is too late to object to it on this appeal:

For the reason above assigned the exceptions must be sustained and a new trial ordered,' with costs to' defendant to abide the event.

Van Brunt, P. J., Ingraham, Hatch and Laughlin, JJ., concurred.

Exceptions sustained and new trial ordered, costs to defendant to abide event. 
      
      
        Union Trust Vo. v. Rockford, R. I. & St. L. R. R. Vo.
      
     