Bush Co. v. Gibbons (87 A.D. 576, 1903)

Woodward, J.:

In 1895 the plaintiff in this action entered into two contracts with M. Gibbons & Son, by which the latter undertook to construct two warehouses for the former, at an aggregate cost of $151,000. The firm of M. Gibbons & Son originally consisted of Michael Gibbons and Bichard Gibbons, his son, one of the defendants in this action. The buildings were completed about July 2, 1896, and shortly thereafter Michael Gibbons and Bichard Gibbons began an action against the plaintiff in this action to recover the sum of $56,000, the unpaid balance of the contract price for the erection of said buildings. The original complaint claimed a considerable sum for extra work, but this was dropped upon- the trial, and the litigation, after passing successively through the Appellate Division and the Court of Appeals, resulted in a judgment or judgments against the plaintiff aggregating at the time of the commencement of this action, with interest, $79,640.78. Several claimants appearing and demanding this money under assignments or otherwise, the plaintiff brought this action, in the nature of a-bill of interpleader, and has been permitted by the court to deposit the amount to the credit of the action, and has been dismissed from further liability. All of the parties acquiesce in this, and the only questions raiséd by the appeal are in relation to the rights and priorities of the various claimants, the fund not being sufficient to meet all demands.

On the 25th of August, 1896, shortly after the commencement of the action by Michael Gibbons and Bichard Gibbons against the plaintiff in this action, Michael Gibbons died. The complaint in that action alleged that they were copartners, doing business under the firm name of M. Gibbons & Son, and after the death of the father the action was continued in the name of Bichárd Gibbons as surviving member of the firm of M. Gibbons & Son, the judgment being entered in that name and under that designation, and it continued in that form during all of the subsequent history of the case, Michael Gibbons left a last will and testament under date of August 14, 1896, which was duly admitted to probate in October of that year.. The will appointed Bichard Gibbons as executor, who qualified and entered upon the discharge of his duties. The will, among other things, contained the following clause,'upon which several of the claimants rest their demand for a reversal of the judgment. It reads as follows: “ Having heretofore conveyed to my son Bichard .Gibbons all of my interest in the business of M. Gibbons