SHANKS v. NATIONAL CASKET CO. et al.

(Supreme Court, Appellate Division, Second Department. June 10, 1904.) 1. BANKRUPTCY-ACTION TO SET ASIDE CHATTEL MORTGAGE-PARTIES.

In an action by a trustee in bankruptcy to set aside an alleged fraudulent chattel mortgage, the fact that the bankrupt had given other chattel mortgages on the same property subsequent to the mortgage in controversy does not make the mortgagees therein necessary parties, where the subsequent mortgages were not filed in compliance with Lien Law, §§ 9095 (Laws 1897, pp. 536-538, c. 418), declaring such mortgages void as against creditors unless filed as directed therein.

2. SAME.

In an action by a trustee in bankruptcy to set aside an alleged fraudulent chattel mortgage, a so-called separate answer of the bankrupt, alleging that subsequent to the execution of the mortgage in controversy he executed other chattel mortgages on the same property to other persons, and that such persons had not been made parties to the action, is properly considered as a demurrer for a defect of parties.

3. SAME.

In an action by a trustee in bankruptcy to set aside an alleged fraudulent chattel mortgage, persons to whom the bankrupt had subsequently executed other chattel mortgages on the same property are not necessary parties under Code Civ. Proc. § 452, providing that, where a complete determination of the controversy cannot be had without the presence of other parties, the court must direct them to be brought in, where it does not appear that the persons sought to be made parties had anything to do with the alleged fraudulent transaction.

Appeal from Special Term.

Action by Sanders Shanks, as trustee in bankruptcy of the estate of Frank S. Henderson, bankrupt, against the National Casket Company, in which the bankrupt filed an answer. From an interlocutory judgment overruling a demurrer to the bankrupt's separate answer, plaintiff appeals. Reversed.

Argued before HIRSCHBERG, P. J., and BARTLETT, WOODWARD, JENKS, and HOOKER, JJ.

Walter Carroll Low, for appellant.

Henry M. Dater, for respondents.

WOODWARD, J. The plaintiff is the trustee in bankruptcy of the defendant Henderson, and this action is brought to recover from the National Casket Company the value of certain property belonging to said bankrupt, taken by said company under a chattel mortgage which plaintiff claims to have been fraudulent and void as against creditors. The answer of the defendant Henderson admits some of the material allegations of the complaint, and denies "each and every other allegation in said complaint contained not hereinbefore specifically admitted or denied." He then sets up as a separate defense that: "There is a defect of parties defendant herein, in that, subsequent to the making of the chattel mortgage hereinbefore alleged, the defendant, for a good and valuable consideration, made and delivered certain other chattel mortgages to certain other persons, and that in particular on or about the 21st day of December, 1900, the said defendant made and delivered a certain chattel mortgage covering the same chattels, or some of them, as hereinbefore described, to one Margaret F. Dodd, and that all of said subsequent mortgages are prior

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to the claim, if any, of the plaintiff herein, and that neither said Margaret F. Dodd, nor any of said persons, have been made parties hereto."

The plaintiff demurred to this so-called defense "on the ground that the same is insufficient in law upon the face thereof." This demurrer has been overruled by the court at Special Term, the plaintiff appealing from the interlocutory judgment entered upon the decision. It does not appear to be necessary at this time to determine a supposed conflict between the cases of Prosser v. Matthiessen, 26 Hun, 527, decided in this department, and Mittendorf v. N. Y. & Harlem R. R. Co., 58 App. Div. 260, 68 N. Y. Supp. 1094, decided in the First Department, upon the question of whether the nonjoinder of parties has been properly pleaded, for, in the view which we take of this case, the defense is, in substance, insufficient. The plaintiff, as the trustee in bankruptcy of the defendant Henderson, brings this action, in effect, to set aside a chattel mortgage, alleged to have been made in fraud of the creditors of the defendant Henderson. This chattel mortgage was originally made and placed on file in the office of the clerk of Kings county on the 29th day of May, 1899, and was kept in force up to and including the date of the foreclosure of such chattel mortgage on the 4th day of November, 1901; and the fact that the defendant Henderson may have given other chattel mortgages to Margaret F. Dodd, and other persons whose names are not mentioned, cannot be a defense to the charge of fraud in connection with the making and filing of the original chattel mortgage and its subsequent foreclosure. Margaret F. Dodd and the other persons, if they have valid liens upon the chattels, cannot be deprived of their rights in the present litigation. If the action results in a judgment or decree setting aside the chattel mortgage of 1899, it will serve to make the lien of Margaret F. Dodd and others, creditors of Henderson, superior to their present standing; and, not being parties to the action, the judgment cannot take away their rights, if they have any. It is true, of course, that the trustee might be interested in having all of these parties brought in. The parties themselves might ask to intervene under the provisions of section 452 of the Code of Civil Procedure. But their absence from the record does not constitute a defense to an action for the fraud alleged in the complaint. The plaintiff, if he succeeds in his action, will merely establish that the original chattel mortgage was fraudulent and void as against the creditors of Henderson. He will, in equity, restore the property to Henderson, relieved of the lien of the defendant the National Casket Company, and then, if Margaret F. Dodd or any one else has a valid, existing lien against the property, the plaintiff will gain no right to the property, except in subordination of the prior liens. But the separate defense alleged does not show that the chattel mortgage given to Margaret F. Dodd or to any other person has been filed, or that any such mortgage has been kept in force by a compliance with the provisions of sections 90 to 95 of the lien law (chapter 418, pp. 536-538, of the Laws of 1897); and, unless this has been done, it is difficult to understand how Margaret F. Dodd, or any other unknown person, could be even a proper party to this action, much less a necessary party. This separate defense is in the nature of a plea in abatement. It says in effect, assuming that the facts are as alleged in the complaint, this action cannot proceed to judgment,

because of the fact that there is a nonjoinder of parties defendant. In this view of the case, the defense is properly considered as a demurrer, which may be sustained for a defect of parties only upon the grounds that the demurring party has an interest in having the omitted parties joined, or that he is prejudiced by the nonjoinder. Anderton v. Wolf, 41 Hun, 571, 572; Bauer v. Platt, 72 Hun, 326, 25 N. Y. Supp. 426, and authorities there cited. What possible difference can it make to the defendant Henderson whether Margaret F. Dodd is made a party to this action or not? The gravamen of the action is fraud in connection with the original chattel mortgage. That is the only controversy between the plaintiff as trustee in bankruptcy of the defendant Henderson, and the defendants in this action. There is not a word in the separate defense to indicate that Margaret F. Dodd or any of the other persons referred to had anything whatever to do with this alleged fraudulent transaction. This question of fraud may be tried out, and a determination of the controversy between the parties now before the court may be completely disposed of, without the presence of Margaret F. Dodd or any other person; and section 452 of the Code of Civil Procedure provides that:

"The court may determine the controversy, as between the parties before it, where it can do so without prejudice to the rights of others, or by saving their rights; but where a complete determination of the controversy cannot be had without the presence of other parties, the court must direct them to be brought in."

The phrase "a complete determination of the controversy" has been judicially held to mean "when there are persons not parties whose rights must be ascertained and settled, before the rights of the parties to the suit can be determined." Bauer v. Platt, 72 Hun, 326, 332, 25 N. Y. Supp. 426, 430, and authorities there cited. Clearly, there are no rights of Margaret F. Dodd, assuming that she has a valid, existing lien, which must be ascertained and settled before the question of defendant Henderson's fraud in making the original chattel mortgage can be adjudicated between him and his trustee, and she is not, therefore, a necessary party to this action. This being true, the fact that she is not made a party is not prejudicial to any of the defendants in this action, and it cannot constitute a defense for the defendant Henderson. It follows that the plaintiff's demurrer to the separate defense should have been sustained.

The interlocutory judgment appealed from should be reversed, and the demurrer of plaintiff should be sustained, with costs. All concur.

(43 Misc. Rep. 297.)

In re BOYCE.

(Supreme Court, Special Term, St. Lawrence County. March, 1904.) 1. PRISONS-DUTY OF SHERIFF-CONVICT WITH CONTAGIOUS DISEASE.

Under County Law, §§ 92, 183 (Laws 1892, pp. 1766, 1782, c. 686), and Pen. Code, § 434, providing that a sheriff shall have the custody of the jails and the prisoners therein, and making it a misdemeanor to willfully expose a person affected with a contagious disease, a sheriff of a county jail situated in a village, who discovers that one of the prisoners is suf

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fering from a contagious disease, should remove the prisoner to a suitable place, and keep him there until he has served his sentence.

2. COUNTIES-PESTHOUSE-COUNTY CHARGE.

Where a sheriff selected a place as a pesthouse in which to place a prisoner from the county jail, suffering from a contagious disease, and such selection was ratified, under Laws 1900, p. 685, c. 324, § 8. by the purchasing committee of the county, having control of the sheriff's contracts and liabilities, the rent of the place selected, and the damages to its owner, are a proper county charge.

3. SAME.

The fact that the village president and the chairman of the village board of health assisted in the removal of a county prisoner from the jail to a pesthouse selected by the sheriff does not render the town, and not the county, liable for the expenses connected therewith.

Application of Ella Boyce for a writ of mandamus against the board of supervisors of St. Lawrence county. Writ granted.

L. P. Hale, for relator.

George H. Bowers, for defendant.

JOHN M. KELLOGG, J. The relator, with her family, having left her home, returned a few days afterward and found it occupied as a pesthouse, and designated under section 135 of the Code of Civil Procedure as a part of the county jail, and occupied by a prisoner who had been transferred from the county jail, suffering from smallpox, and in charge of a deputy sheriff, and with a physician who had been employed to attend the patient. Food was furnished them from the county jail. Her bill for the rental of the house, the destruction of bedding, the cleaning, and other damages, was rejected by the board of supervisors; it feeling that it had not the power to pay the same, but that the town of Canton, in which the jail and the relator's house are situate, was liable, rather than the county. Viewed from the relator's and a property standpoint, the intrusion into her house and its occupancy was a clear violation of her rights, and without any authority; and undoubtedly the sheriff, the deputy sheriff, and the president of the village, and the physician in charge, were jointly and severally liable for such wrongful acts. The prisoner was not, probably, personally liable, from the fact that he had no control of himself; was, by compulsion, being maintained by the county; the sheriff's will, and not his own, controlling his action. Were the relator proceeding against the parties who invaded her home, it would not be material to inquire who first suggested the act, or who was the principal mover. Each would be liable for all of her damage. It is unnecessary to say that neither the town nor the county had the right to so use the relator's property, and that no public officer had authority to do so in its behalf. Viewed from a public standpoint, the public interest and the public good would commend, rather than blame, the different individuals for the part they took in this invasion of the relator's rights.

It being clear that the relator must be compensated, the only question is whether the county was chargeable with the support and maintenance of the prisoner after it became necessary to remove him from the county jail, so that the sheriff was capable of charging upon the county the result of the acts which he and those acting with him did in that

respect while caring for the prisoner. Or, if the sheriff did not perform all of his duties, but neglected some of them, and those duties were performed by others with the knowledge and consent of the sheriff, whether the credit of the county is not fairly and equitably pledged therefor. It is not the misfortune of, but, rather, a benefit to, the plaintiff, if, instead of having a remedy against the county, she may also have one against the town of Canton and the various individuals. The question here is, has she such remedy against the county?

In this county, by the local law (chapter 324, p. 683, Laws 1900), the sheriff is a salaried officer, and the "purchasing committee" has certain control or supervision over his contracts and the liabilities to be incurred by him. And by section 7 (page 684) of that law "he shall be responsible for the custody, maintenance and control of all prisoners and persons detained in said jail." Section 183 of the county law (Laws 1892, p. 1782, c. 686) provides that "each sheriff shall have the custody of the jails of his county and the prisoners therein, and such jail shall be kept by him or by keepers appointed by him for whose acts he shall be responsible." Section 92 (page 1766) of the county law requires him to receive and safely keep all persons sentenced to imprisonment, and "he shall not, without lawful authority, let any person out of jail." And by Pen. Code, § 434, it is made a misdemeanor to willfully expose a person affected with a contagious or infectious disease in a public place, except during his necessary removal therefrom; and, I think, with 72 people in the jail, seven of whom were attendants and members of the sheriff's family, and the others Chinese and other prisoners detained therein, the jail would be considered a public place, within the meaning of that statute. The sheriff therefore seems to have been in a position where it was a violation of his duty to discharge or let the prisoner go, and it was a crime to keep him in the county jail. This would necessarily give him a right to make the proper arrangements for keeping the prisoner elsewhere. Section 24 of the public health law (Laws 1893, p. 1505, c. 661) authorizes the superintendent of the poor to remove an inmate suffering from such disease from the almshouse to such place as the local board of health may authorize, the expense to be borne by the county. Section 92 of chapter 382 (page 525) of the Laws of 1889 requires that, in case of a contagious disease in the State Prison, the superintendent may cause the prisoners to be removed to some suitable. place of security, where such of them as may be sick shall receive all necessary care and medical treatment. The Code of Civil Procedure (section 135) authorizes "the physician to the jail" to certify as to the existence of a pestilential disease, and authorizes the county judge to designate another suitable place for the purpose of keeping some or all of the prisoners. After the prisoner's removal to the relator's house, upon a petition of the physician to the jail, this house was so designated. by the special county judge. But it is said that, by section 144 of said Code, he had no power to make the designation, except in case the county judge was absent from the county, and that that fact does not appear. But after the prisoner has served his sentence there, and the owner's compensation only is in question, it is a little late to successfully raise that objection. The jail physician obtained the order; the building was actually occupied by the sheriff, through his deputy and pris