Austin, Nichols & Co. v. Washer

Judgment reversed upon the law and facts, with costs, and the complaint dismissed, with costs. Finding of fact No. 13, and refusals to find the defendant’s proposed findings of fact numbered 5, 8 and 13, are reversed. Proposed findings of fact 5, 8 and 13 are found. The so-called conclusion of law numbered 2d is reversed, and the 4th conclusion of law is reversed. As the evidence disclosed that the plaintiff was not the only creditor of the Ocean Avenue Hotel Company, Inc., it was not entitled to proceed to judgment for the benefit of the plaintiff alone. (Code Civ. Proc. § 452.) The appropriate remedy was an action in equity for the benefit of all the creditors. (Lang v. Lutz, 83 App. Div. 534; affd., 180 N. Y. 254; Graeber v. Ehrgott, 182 App. Div. 377.) Rich, Kelly, Jaycox and Manning, JJ., concur; Blackmar, P. J., votes to reverse on the ground last stated, and for a new trial.