
    First National Bank of Amsterdam, Resp’t, v. Elizabeth N. Shuler et al., Def’ts. Elizabeth N. Shuler, Individually and as Executrix, etc., App'lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed September 10, 1895.)
    
    1. Parties—Substitution—Executrix a party.
    "When a person is already a party individually and before the court and entitled to be heard in his representative capacity, a refusal to make him a party in his representative capacity is not error.
    9. Creditor’s bill—Lien.
    The commencement of an action in the nature of a creditor’s bill creates a lien on all the debtor’s assets which survive his death, occurring before the appointment of a receiver, and is good against his personal representatives.
    Appeal from a judgment, and from an order, denying a motion to correct the interlocutory judgment and to be made a party in a representative capacity.
    
      Hale, Bulkeley & Tennant (Matthew Hale, of counsel), for app’lt; Westbrook, Burke & Hover {Z. S. Westbrook, of counsel), for res’pt.
   Mayham, P. J.

This appeal arises out of the following facts: The plaintiff in this action, being a judgment creditor of Isaac 0. Shuler, in his lifetime commenced a creditor’s action to set aside certain conveyances and assignments made by him to Mary A. Booth and Elizabeth N. Shuler, and a general assignment for the benefit of creditors, made by the judgment debtor to Hicks B. Waldron, all of whom were made defendants in this action. The defendants Isaac 0. Shuler and Elizabeth N. Shuler answered in the action, taking issue upon the allegations of the complaint therein. After the issue was joined, and before the trial of the action, Isaac 0. Shuler died, leaving a last will and testament, wherein he named Elizabeth N. Shuler as sole executrix, and made her the sole devisee and legatee of all of his estate, real and personal; whereupon the plaintiff obtained an order of the court for leave to file and serve a supplemental complaint. That complaint, in addition to the allegations of the original complaint, alleged the death of Isaac 0. Shuler, making execution and probate of" his will, and the appointment and qualification of Elizabeth N. Shuler as sole executrix of that will. That motion was made, and the relief granted, upon notice to all the surviving defendants in the action. No issue was taken by the defendants upon the allegations of the supplemental complaint, and the same were, therefore, admitted. The cause was tried before Hon. Charles R Ingalls, as sole referee, who, after hearing the case, made his report, wherein, among other things, he found and adjudged several of the conveyances and assignments made by Isaac C. Shuler, and his final assignment for the benefit of creditors, fraudulent and void, and directed judgment setting aside such conveyances and assignments, and adjudging them void as against the plaintiff, as judgment creditor. To some portions of the findings of fact and conclusions of law in the report of the referee, the defendant Elizabeth N. Shuler, by her counsel, excepted. Upon the filing of the report, an application was made by the plaintiff to the special term for a confirmation of the same, and for judgment upon the report in favor of the plaintiff. Upon notice of such application, Elizabeth N. Shuler, by her attorney, gave notice of a motion to set aside the report, or correct or modify the same, and also for an order that she, as executrix of the last will and testament of Isaac C. Shuler, be made a defendant in the action. The motion for confirmation and judgment, and the motion made by the defendant Elizabeth to set aside the report, and to be made a party defendant, were all ordered to be heard before Mr. Justice Landon, at special term, who subsequently heard the applications on behalf of the plaintiff and defendant, whereupon he denied the motion of Elizabeth N. to set aside the report, and to be made a party, with costs, and granted the motion of the plaintiff for interlocutory judgment, and, in and by such interlocutory judgment, appointed a receiver of the property and effects of Isaac 0. Shuler, deceased, and also a referee to take and state the accounts of the assignee for the benefit of the -creditors of Isaac C. Shuler, and also of Elizabeth N. Shuler, for any property in their, or either of their, hands, belonging to the estate of the deceased. On the hearing before said referee, in taking the account directed by said interlocutory judgment, the appellant, Elizabeth N. Shuler, appeared by counsel, as did the counsel for the plaintiff; and the referee, after hearing counsel, made his report, wherein he followed the. directions of the report of the referee made in the trial, and fixed and adjudged the amount and kind of property found by him in the possession of the assignee for the benefit of creditors, and also of that in the hands of Elizabeth N Shuler, belonging to the estate of the deceased. That report of the referee was duly filed, and upon it and the report of the referee in the action, and the interlocutory judgment entered thereon, final judgment was, on motion at special term, held by Justice Landokt, entered in the action, from which the defendant Elizabeth N. Shuler appeals to this court, bringing up, as well, the interlocutory judgment for review.

We think the learned trial judge at special term was clearly right in denying the application of Elizabeth N. Shuler to be brought in as executrix. Within the authorities referred to by him, she was properly before the court in her representative capacity after the filing of the supplemental complaint. There can be but little doubt but that, if she had so desired, she could, after the service of the supplemental complaint upon her, have interposed an answer in her representative capacity, without any further leave of the court to do so. She was, therefore, for all the beneficial purposes of her defense as executrix, before the court, and entitled to be heard in that capacity in this action. That being so, there could be no good reason for allowing her, after the case had been finally disposed of, to present new issues, and render the work already accomplished in the case, perhaps, entirely nugatory. The order, so far, at least, as it refuses her application to be made defendant. should be affirmed, with costs.

We have also carefully examined the various questions raised by the learned counsel for the appellant in reference to a modification of the interlocutory judgment, as asked for by them, as well as their application, on the whole case, for a reversal or modification of the decree entered therein, and are of the opinion that the •same should be affirmed upon the opinion rendered by the judge at special term. Most, if not all, of the questions raised by the learned counsel on this appeal, were clearly and succinctly examined and passed upon in the opinion handed down by the special term judge. We think the interlocutory and final judgment should be affirmed upon that opinion. Judgment affirmed, with costs.

All concur.

The opinion of Mr. Justice Landon at special term was as fol. lows:

The objection that the defendant Elizabeth N, Shuler, as executrix, was not named as a party defendant in the supplemental complaint, is not a substantial or fatal objection. She was a party defendant in the original action, and, after the death of her husband, also a defendant in that action, and her qualification as the executrix under his will, an order was made, pursuant to which a supplemental complaint was served, reciting such death, and her qualification as executrix. The supplemental complaint is ample to charge her as executrix. Patterson v. Copeland, 52 How. Prac. 460; Beers v. Shannon, 73 N. Y. 292; Stilwell v. Carpenter, 2 Abb. N. C. 238; 62 N. Y. 639. In the original complaint, Mrs. Shuler was charged in her individual capacity. The function of the supplemental complaint was to charge her as executrix of her husband, as well as individually. The plaintiff, by commencing this action, obtained a lien upon the assets of Isaac 0. Shuler which survived his death, though the receiver was not appointed until after his death. Brown v. Nichols, 42 N. Y. 26. It is urged in behalf of Mrs. Shuler that this lien only applied to intangible and equitable assets, not subject to levy upon execution, and that, as to tangible assets, subject to levy, the lien did not attach, and therefore, upon the death of Mr. Shuler, they passed to her as his executrix. As Mr. Shuler had made a general assignment of his assets, good against himself, though bad against the plaintiff, they did not pass, under his will, to his executrix. Clearly, if the lien of the plaintiff was good against Shuler himself, his executrix, who stands in his shoes, has not better right. The cases cited to support the proposition that the lien acquired by the commencement of an action in the nature of a creditors’ bill does not attach to tangible assets, subject to levy, are to the effect that such lien, before the actual appointment of a receiver, does not prejudice the lien of the levy under an execution of another judgment creditor. Davenport v. Kelly, id. 193. Something more than a Us pendens is required to prejudice such a levy. Becker v. Torrance, 31 N. Y. 631. Bank v. Schermerhorn, Clarke, Ch. 303, was a contest between receiver and the sheriff, who made his levy after the actual appointment of the receiver. Kitchen v. Lowery. 127 N. Y. 53; 37 St. Rep. 327, was by a judgment creditor who did not commence his action to set aside an unfiled chattel mortgage until after the mortgagee had sold the chattels, and realized his money upon them. The mortgage was good between mortgagor and mortgagee., though not filed, and the judgment creditor was beaten because the mortgagee realized upon his lien before the judgment creditor attacked it. There are expressions in the opinion that seem to support Mrs. Shuler’s contention. They are probably true, as applicable to the facts there presented, but not true if sought to be extended to Mrs. Shuler’s position.

I think the rule is that, by the commencement of an action in the nature of a creditors’ bill, a lien is acquired upon all the choses in action and equitable assets of the judgment debtor, and also upon all his tangible assets; that, as to the intangible assets, since they can only be reached in equity, the first in diligence is first in lien, and, as to the tangible assets, the law affords the creditor a remedy by execution, which equity does not supersede or exclude; which, if resorted to before a receiver is appointed, takes the preference. It is probably true that a chattel-mortgage sale, or any other honest transfer of the. tangible property, before the commencement of the creditor’s action, will be upheld. The cases are contests between creditors, in which an actual lien, or title accompanied with possession of the property, or the right to it, is better than the attempt to perfect it by resort to equity. I notice the remark of Mr. Justice Gilbert in Smith v. Edwards, 23 Hun, 229, to the effect that Judge Grover’s remarks in his dissenting opinion in Brown v. Nichols, 42 N. Y. 26, have not the force of authority. But Judge Grover’s opinion consists of two parts,—one in which he dissented from the majority, and the other in which he agreed with them,—and the remarks referred to are in the second of his opinion. I think Judge Grover, in these remarks, was right, and I do not see that they did not receive the approval of the majority.

The motion of Mrs. Shuler is denied, and the referee’s report confirmed, except as modified, as to the value of a horse charged to-Mrs. Shuler, $75, and interest, and final judgment directed for plaintiff.  