DAVID JAMES KING and Others, as Only Surviving Qualified Executors of and Trustees under the Last Will and Testament of EDWARD J. KING, Late of the City of New York, Deceased, Respondents,
MARY A. DOERR and Others, Defendants, Impleaded with FISS, DOERR & CARROLL HORSE COMPANY, Appellant, and HERMAN M. BEERS, Respondent.
APPEAL by the defendant, Fiss, Doerr & Carroll Horse Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of March, 1911, confirming the report of a referee in surplus money proceedings.
Martin Conboy, for the appellant.
Edward S. Seidman, for the respondent.
John B. Doerr owned the premises subject to the mortgage, the foreclosure of which resulted in the surplus money involved herein. He died July 25, 1901, leaving a will, by which he divided all his property, real and personal, in equal shares among his wife, Mary A. Doerr, his daughter, May Estella Landis, and his son, William H. F. Doerr. The one-third interest of the said son only is involved in this appeal, and the question relates to the priority of liens of three claimants--the appellant Fiss, Doerr & Carroll Horse Company; the respondent Herman M. Beers, and Eva Findlay, the mother-in-law of the said son. The lien of the said appellant is based upon a judgment for $4,219.80 entered March 31, 1904, in a suit begun by attachment, notice of which was filed and indexed against the property on January 31, 1902. The liens of the said respondent and of the said Findlay are based upon a judgment entered on April 17, 1906, in a suit in equity instituted by the said respondent against the said William H. F. Doerr, the appellant Fiss, Doerr & Carroll Horse Company, the executors of the said John B. Doerr, the said Eva Findlay, Mary A. Doerr, and May Estella Landis, and one Frederick Wagner. The judgment was entered upon consent and upon findings
agreed to by all of the parties. That judgment provided that the claim of the plaintiff, this respondent, is established 'as a first lien (as of date May 10, 1902) upon the entire share or interest of William H. F. Doerr in the real and personal estate of said John B. Doerr, deceased * * *; and that the claim of defendant Eva Findlay is hereby established as above determined as a lien (as of date Oct. 7, 1901) upon the entire share or interest of defendant William H. F. Doerr in the real and personal estate of John B. Doerr, deceased * * *. And that the defendant William H. F. Doerr shall have paid over to him whatsoever surplus there may be of his share or interest in the estate of John B. Doerr, deceased, after the payment in the order of priority above fixed of the claims of the plaintiff Herman M. Beers and of the defendant Eva Findlay.' Standing alone those provisions would seem to have the effect not only of subordinating the lien of the appellant's judgment to the claims of the respondent and the said Findlay, but also of destroying the lien of the appellant's judgment, even as against the judgment debtor himself. The respondent relies upon that judgment as an adjudication, and invokes the doctrine that it is not subject to collateral attack. But in determining the extent to which a judgment operates as an estoppel it is necessary to determine what issues were involved and decided in the action, and the burden is on the person asserting the estoppel to establish it. ( Rudd v. Cornell, 171 N.Y. 114.) Construction is not attack.
To determine the issues involved we must look to the pleadings. It appears that the said John B. Doerr owned 3121/2 shares of the capital stock of the Fiss, Doerr & Carroll Horse Company, the appellant. He provided in his will that his son should be allowed to purchase from the executors, at an appraised value to be determined by them, his interest in the copartnership business, then conducted by him jointly with William Fiss and Joseph D. Carroll. Evidently the appellant was incorporated and succeeded to the business of the said copartnership after the will was made. The respondent, the plaintiff in said equity suit, alleged in his complaint therein that on May 10, 1902, the said William H. F. Doerr assigned to the plaintiffs' assignors 3121/2 shares of the capital stock of
the appellant as security for credit extended to him in the sum of $20,000; that said shares belonged to the said testator at the time of his death; that the executors of said testator had notice of said assignment; that without giving the plaintiff any notice or opportunity to take the same, as provided in said will and in violation of the terms of the will, they made a pretended sale thereof to the said Wagner at a grossly inadequate price, and that the said Wagner was really acting in behalf of two of the executors; that the said William H. F. Doerr procured the said Eva Findlay to bring a suit against him and the executors on an alleged assignment purporting to have been made to her on October 7, 1901, but which was in fact really made long thereafter, to hinder, delay and defraud the plaintiff. His prayer for relief was that the assignment to him be established, and that he be decreed to have a first lien to the extent of $17,728.20 on the 3121/2 shares of the capital stock of the appellant herein, and on all the interest devised and bequeathed to the said William H. F. Doerr by his said father; that said stock and interest in said estate be sold, and out of the proceeds thereof the plaintiffs' claim thus established be paid; that the executors be required to account for said 3121/2 shares, and for the entire interest of said William H. F. Doerr in said estate; that the alleged sale of the 3121/2 shares to the said Wagner be set aside, and that the pretended assignment to the said Findlay be adjudged fraudulent and void; that the entire estate of the said John B. Doerr be sold and distribution thereof made to the persons found entitled thereto. The only relief prayed for against this appellant was that it be enjoined and restrained from transferring the said 3121/2 shares of stock.
It will be observed that the complaint really tendered but three issues: (a) The validity and the effect of the assignment of the 3121/2 shares to the plaintiff and of the plaintiff's claim, to secure which the assignment was made; b, the validity of the sale to Wagner of the 3121/2 shares; c, the validity of the assignment to Findlay. Of course, the plaintiff in that suit, this respondent, had no lien except perforce of his assignment of the 3121/2 shares of stock. He obviously undertook to assert: 1, a right to the said shares of stock; 2, a right to be reimbursed out of the general estate in the hands of the executors,
on the theory that they had wrongfully transferred said shares. As a mere general creditor he had no lien on the real estate devised by the said John B. Doerr, whose will did not even give the executors power of sale. While he asked broadly that he be adjudged to have a lien on the interest of William H. F. Doerr in the estate both real and personal devised and bequeathed by his father, it is obvious that he was not entitled to that relief, and such a demand in such ...