COURT OF APPEALS.

#### The Produce Bank agt. Joseph Morton *et al.*

*Creditors’ suits*— *when may be*.maintained— *new trial—proper case fora motion under section*268 *of the Code—appeal from order granting new trial—amount of judgment when entered governs question of appealability.*

Before a plaintiff can commence or maintain an action in the nature of a creditor’s bill, its remedy at law against the judgment debtors must first be exhausted.

Where the plaintiff begun his action against the three defendants as copartners, service of the summons and complaint was made on two of the defendants, judgment was entered and docketed by the clerk, on default, against the two defendants served only, and an execution on this judgment was issued to the sheriff against the property of the three defendants, which was returned “no personal or real property:”

*Held,*that the plaintiff had exhausted its remedy at law against the judgment debtors, so as to entitle it to proceed in equity to reach joint property (Code, *sec.*294).

*Held, also,*that although the judgment upon which the execution was issued was not in form entered against the joint debtors, but only against the two who were served, yet it appeared on the face of the judgment roll that it was founded upon a joint obligation, and should have been entered in form against all the debtors, they all being parties defendant.

*Held, also,*that where there is a mistake or defect in the docket merely of form, the court has the power to amend the same.

It is not sufficient ground for setting aside an assignment, that the affidavit to the schedules or inventory was made before a person not legally qualified to administer the oath.

*It seems*that it was the intent of the legislature of 1874 *(Laws of*1874, *chap,*600, *p.*824) to abrogate the rule laid down in *Juliand*agt. *Rathbone*(39 *N. Y.,*369), and that the provision allowing the assignee within six months to file schedules was not intended as a condition, the breach of which should invalidate the assignment.

A motion for a new trial under section 268 of the Code is only allowable where the decision filed under section 267 *does not authorize a final judgment.*

*158*November*Term, 1876,

Where the amount of plaintiff’s claim was ascertained, judgment was rendered that the assignment he set aside, that the assignee deliver over the assigned property to a receiver, and that the plaintiff he paid out of the proceeds the amount of his claim and costs:

*Held,*that the judgment was final and reviewable by appeal; that the machinery of a reference and receivership was for the sole purpose of carrying the judgment into execution, and not the foundation of any further judicial action in the case.

An appeal from an order granting a new trial cannot be had to the court of appeals where the amount of the judgment or subject-matter in controversy does not exceed §500 *(Laws of*1874, *p.*378).

*It seems*that the amount of the judgment when entered must govern the question of appealability, and that interest accruing "after its rendition cannot be added for the purpose of bringing it up to the requisite amount. Where judgment has been rendered for a specific amount that must be the test. Where there-is no judgment or it is not for a specific sum, the value of the subject-matter in controversy must be ascertained.

On February 4,1874, the defendants Joseph Morton, Leon Weil and Alphonse Weil, composing the firm of Weil Brothers *&*Co., of the city of New York, made an assignment, as such copartnership, for the benefit of their creditors, to the defendant Austin Baldwin. The assignment was recorded in the office of the clerk of the city and county of New York, on the same day.

The assignors made and delivered certain paper writings, purporting to be the schedules, or the inventory required by chapter 348, Laws of 1860, section 2; but the affidavit required to be annexed to the inventory, or schedules, was made in the city of New York, before a notary public appointed for Kings county, who had not filed in the office of the clerk of the city and county of New York, any certified copy of his appointment or his autograph signature.

This paper, purporting to be the inventory or schedules, was not filed in the office of the clerk of the city and county of New York, as required by section 6, chapter 348, Laws 1860. But it was filed in the office of the clerk of the court *159of common pleas, on February 19, 1874, and was produced therefrom on the trial.

The defendant Austin Baldwin, the assignee, entered into what purported to be a bond with sureties, as required by section 3, chapter 348, Laws 1860.

But this paper, purporting to be a bond, was executed and acknowledged in New York county, before a notary public appointed for Kings county, who had not filed a certified copy of his appointment in the office of the clerk of the city and county of New York, or his autograph signature.

This paper, purporting to be the bond, was also filed on February 19, 1874, and it was also produced on the trial, from the office of the clerk of the court of common pleas.

On June 22, 1874, the plaintiff begun an action in the superior court of the city of New York, against the defendants- Joseph Morton, Leon Weil and Alphonse Weil, as copartners, and service of the summons and complaint, was made on two of the defendants, to wit, Joseph Morton and Alphonse Weil. On July 14, 1874, judgment was entered and docketed by the clerk, on default, against the two defendants served only, to wit, Joseph Morton and Alphonse Weil, for §458.50. And the same was docketed against those two defendants in the office of the clerk of the city and county of New York, after the filing of a transcript.

On January 7, 1875, an execution on this judgment was issued to the sheriff of the city and county of New York against the property of Joseph Morton, Leon Weil and Alphonse Weil, which was returned “no personal or real property,” February 4, 1875.

On February 9, 1875, this action was begun, to set aside the assignment above mentioned, as fraudulent and void as against the plaintiff.

The defendants admit, in their answer, that they had no property, except as contained in the said assignment.

The case was tried before the court at special term, April 15, 1875 ; and on April 19, 1875, the case was reopened, and *160the judgment roll and transcripts as amended by the order of the court at special term, *nunc pro*tunc, by adding the name of Leon Weil as one of the parties defendant in the judgment of July 14, 1874, were put in evidence.

On July 12,1875, the findings of the court, or the decision, were filed, whereby it was found that the assignment was null and- void, and that a receiver should be appointed to take charge of such property and effects as should be found by a referee in the hands of Baldwin, to which the plaintiff was declared to be entitled. ,

And that the receiver should pay out of such property or effects to the plaintiff or his attorneys the costs of the action and the amount of the said judgment of July 14, 1874, and interest on the same.

On July 21, 1875, judgment herein was entered with the clerk pursuant to this decision, in favor of the plaintiff and against the defendant.

On September 10, 1875, the defendants filed exceptions to the findings.

On November 27, 1875, the defendants served their notice of motion to be made at December general term for a new trial in the action pursuant to section 268 of the Code.

The motion was heard at December general term, and on the first Monday of January, general term, 1876, decision was given granting the motion, and the respondents entered an order thereon, January 4, 1876.

The plaintiff, on January nineteenth, appeals from such order to this court.

*D. Judson*Neuland, plaintiff’s attorney.

*Fransioli, Tilney &*Mosher, defendants’ attorneys.

Rapallo, J.

We are of the opinion that the plaintiff had, before the commencement of this' action, exhausted its remedy at law against the judgment debtors, so as to entitle it to pro*161ceed in equity to reach joint property *(Code, sec.*294). An execution had, in fact, been issued against the joint property of all the debtors and returned unsatisfied. Under that execution such property might have been taken had any been found. Although the judgment upon which the execution was issyed was not in form entered against the joint debtors, yet it appeared on the face of the judgment roll that it was founded upon a joint obligation, and should have been entered in form against all the debtors, they all being parties defendant. This execution was effectual until set aside, and had an application been made to the court to set it aside, it would have been perfectly competent to have directed an amendment of the judgment and docket, and allowed the execution to stand. The defect was one of form merely. All the requirements of the statute had been substantially complied with; the plaintiff was entitled to a judgment against all the defendants; and this appeared upon the face of the record, no extrinsic proof being required. The order amending the defect on the entry of judgment *nunc pro tuno*was, we think, valid and effectual *(Hart*agt. *Reynolds,*3 *Cow.,*42; *Chichester*agt. *Condee,*3 *Cow.,*39; *Mackay*agt. *Rhinelander,*1 *Johns. Cases,*410; *Hogan*agt. *Hoyt,*37 *N. Y.,*300; *Fawcett*agt. *Vary,*59 *N. Y.,*597, *and cases cited*; *Code, secs.*173 *and*174; *Close*agt. *Gillespie,*3 *Johns. R.,*526; *Bradford*agt. Read, 2 *Sandf. Ch.,*163). But although the plaintiff had a standing, as an execution creditor, sufficient to entitle it to assail the assignment, it has not, in our judgment, shown sufficient cause for setting the assignment aside. The only points urged against it were, that the affidavit to the schedules or inventory was made before a person not legally qualified to administer the oath, and that the schedules and bond were not filed in the proper office. In the case of *Juliand*agt. *Rathbone*(39 *N. Y.,*369) it was held that the making and delivery of the verified schedules, required by section 2 of the act of 1860 *(chap.*348), was essential to the validity of the assignment. But since that decision the legislature passed *162the act of 1874 *(chap. 600,p.*824), which provides that the omission to make or deliver the schedules shall not invalidate the assignment.

We think that it was the intent of this act to abrogate the rule laid down in *Juliand*agt. *Rathbone,*and that the provision allowing the assignee within six months to file schedules was not intended as a condition, the breach of which should invalidate the assignment. It can hardly be supposed that it was the intention of the legislature to leave it uncertain during the six months allowed for filing the schedules, whether the title to the property was in the. assignee, or to deprive him during that interval of the power of making any valid disposition of it. There was no proof that the bond was not filed in the ofiice of the county clerk, nor was there any allegation in the complaint of any omission in respect to the assignee’s bond. The complaint rests wholly on the omission to deliver verified schedules. We therefore agree upon the merits with the conclusion arrived at by the court, at general term.

But the point is made that the case was not properly before the.general term; that it was not a proper case for a motion for a new trial *(sec.*268 *of the Code).*We are inclined to the opinion that this point is well taken, and that the judgment was final, and reviewable by appeal. There was nothing left to be judicially determined. The amount of the plaintiff’s claim was ascertained, judgment was rendered that the assignment be set aside, that the assignee deliver over the assigned property to a receiver, and that the plaintiff be paid out of the proceeds the amount of his claim and costs. This was a final disposition of the whole controversy, and no further judgment was to be rendered. The machinery of a reference and receivership was for the sole purpose of carrying the judgment into execution, and not the foundation of any further judicial action in the case. But the respondent claims that the case is not appealable to this court, the amount in controversy being less than $500 *(Laws of*1874, *p.*378).

*163The judgment was entered July 21, 1875, and the sum directed to be paid to plaintiff for principal and interest amounted to only $491.20. That judgment is all that the appellant has at stake. A new trial has been ordered, and the object of this appeal is, by the reversal of that order, to restore the judgment. We think, in such a case, the amount of the judgment, when entered, must govern the question of appealability, and that interest accruing after its rendition cannot be added for the .purpose of bringing it up to the requisite amount. According to our construction of the act of 1874, it prohibits an appeal from an order granting a new trial where the amount of the judgment or subject-matter in controversy does not exceed $500. In appeals from orders granting or refusing a new trial where judgment has been rendered for a specific amount, that must be the test. Where there is no judgment, or it is not for a specific sum, the value of the subject-matter in controversy must be ascertained.

The appeal should be dismissed with costs.

All concur: Milleb, in result.