McCotter v. McCotter

25 How. Pr. 478

• Court: New York Court of Common Pleas
• Decided: July 15, 1863
• Status: Published

Opinion

Brady, J.

The interest of the plaintiff in the profits arising from the sale of the land mentioned in the complaint to the corporation, was merged by the judgment recovered by his father and partner, Alexander McCotter. The plaintiff, though interested in the transactions as a partner of Alexander, admitted the negotiations for a purchase and sale to be conducted in the name of the latter, and when the defendants, the corporation of New York, declined to take the land, also permitted the defendant, Alexander, his father, to bring an action in his (Alexander’s) name, for a specific performance, and to recover a judgment in Ms name. The plaintiff acquiesced in these various incidents, all of which were calculated to convey, and must have established the belief that Alexander was the sole party in interest. Under such a belief, the defendant Beach purchased the judgment, and as an innocent purchaser he must be protected. This is an answer to the plaintiff's motion, without reference to many other circumstances, which show that this is not a case in which the injunction should be continued, even were there reason to believe that the defendant Beach knew of the plaintiff’s claim when he purchased the judgment. In the view I take of this case, already expressed, it is not necessary, however, to array, these circumstances. It is enough that a latent claim is urged against a purchase in good faith, without notice.

If the corporation had equities against the judgment, they could be urged against the defendant Beach, and they seem to have been by the appeal to the court of appeals. It is idle to say that the purchase of a judgment from the judgment creditor, eo nomine, is affected by equities between him and his partner, without notice thereof to the assignee.

The order appealed from should be affirmed, with $10 costs.