Citations
- 194 A.D. 668
Full opinion text
Page, J.:
The Nemours Trading Corporation brought an action against Alfred C. Gaunt in the Supreme Court, New York county, in which it alleged that it employed defendant to sell goods and merchandise of the plaintiff, and promised to pay him a commission on sales, and defendant promised to try to sell goods and merchandise for plaintiff and accept said commission in payment of his services; that he sold large quantities of goods and merchandise and collected from the purchasers of such goods and merchandise in payment thereof large sums of money; and that although plaintiff has demanded that defendant pay to plaintiff all sums of money so collected, defendant has failed and refused to pay the sum of $168,424.51 collected by him from the purchasers of said goods over and above all commissions and charges due defendant. Judgment is demanded for $168,424.51. An attachment was issued against the defendant as a non-resident, on August 20, 1920.
On August 28, 1920, the Nemours Company commenced an action against Gaunt in the United States District Court in Massachusetts. An attachment was issued directing the marshal to levy upon the real and personal property of the defendant in the amount of $200,000, and the attachment was levied thereupon. It is alleged that this action was brought on the identical cause of action set forth in the New York action.
On September 1, 1920, the defendant in the New York action filed a bond of the Massachusetts Bonding and Insurance Company, undertaking to pay the amount of any judgment that might be recovered in that action not exceeding $168,424.51, with interest, and the attachment was discharged. The action in the United States District Court was discontinued, but on the next day, September 10, 1920, the Nemours Company commenced an action in equity by attachment in the Superior Court, in Suffolk county, Mass., against Gaunt and the Massachusetts Trust Company, in which the cause of action is alleged in the identical words as to the receipt of the moneys and failure to pay the sum of $168,424.51. It is alleged that Gaunt “ is without sufficient property to pay this debt that can be reached by the complainant to be attached or taken on execution in an action at law.
“ The respondent Alfred C. Gaunt is the owner of a large number of shares in the Massachusetts Trust Company, a corporation duly established and existing under the laws of the Commonwealth of Massachusetts and having a usual place of business in Boston in this County of Suffolk, which shares of stock cannot be reached by the complainant to be attached or taken on execution in an action at law, a