Sgobel v. Cappadonia

8 A.D. 303, 40 N.Y.S. 946, 75 N.Y. St. Rep. 345, 1896 N.Y. App. Div. LEXIS 2327

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1896
• Status: Published

Opinion

Per Curiam :

The plaintiffs having advanced to the defendant Cappadonia the money necessary to pay the duties upon the lemons, under an agreement that they should have a lien upon such lemons for the amount so advanced, and the defendant Cappadonia having used the money borrowed from the plaintiffs for the payment of such duties, we think that the lien of the government upon the lemons for duties passed to the plaintiffs by subrogation, so that the plaintiffs became vested with the lien of the government for such duties, and would be entitled to enforce such lien in this action. The shippers of the lemons have no claim against these plaintiffs and have no right to offset as against them the claim against the defendant Cappadonia, so as to destroy the plaintiffs’ lien. The shippers of the goods make no claim here to the proceeds of the sale, and it would be unjust to allow the proceeds of the sale to be paid to the defendant Cappadonia to enable him to defraud the plaintiffs by repudiation of his agreement with them that the goods themselves should be disposed of, and the amount that plaintiffs advanced be repaid out of the sale of the goods.

The order should, therefore, be affirmed, with ten dollars costs and disbursements.

Present — Barrett, Rumsey, Patterson and Ingraham, JJ.

Order affirmed, with ten dollars costs and disbursements.